The State v Singh

• Jurisdiction: Guyana
• Judge: Bishop, C.,Persaud, J.A.,Bernard, J.A.
• Judgment Date: 21 December 1995
• Neutral Citation: GY 1995 CA 4
• Docket Number: No. 29 of 1990
• Court: Court of Appeal (Guyana)
• Date: 21 December 1995

Court of Appeal

Bishop, C.; Bernard, J.A.; Persaud, J.A. (Ag)

No. 29 of 1990

The State

and

Singh

Appearances:

C. R. Ramson for the appellant.

Ian Chang, Director of Public Prosecutions (Ag), for the State.

Criminal law - Grievous bodily harm — Appellant was convicted on two separate counts of causing grievous bodily harm with intent to maim, disfigure or disable two persons — Appellant claimed self defence and accident — Appellant had placed acid on the victims — Court found that the appellant was reckless — Whether the accused had proved that the bottle contained acid — Court found various questions of fact not answered by jury — Court also found that a retrial would not serve the ends of justice — Conviction and sentence quashed.

Bishop, C.

1 I have had the opportunity of reading the judgment, in draft, of my learned brother and colleague, Mr. Justice Prem Persaud. I consider the legal authorities he has employed in support of his reasoning to be appropriate and the result reached justified. Nonetheless, I would wish to present some views of my own on certain aspects of this appeal.

2 At the Assizes of the County of Demerara in its criminal jurisdiction, the appellant was arraigned on two separate counts of causing grievous bodily harm with intent to maim, disfigure or disable Monica Singh as well as her sister, Allison Menezes, in what appeared to be one incident on the 4th December, 1983. The committal proceedings were concluded in June 1987, and the trial was begun on the 6th July, 1990 and concluded five days later.

3 The appellant was convicted on each count and sentenced to eighteen years imprisonment, the sentences to run concurrently. Additionally, he was ordered to receive corporally six strokes in respect of each sentence. Of the sisters, Monica was his wife, then living separate and apart from him and in a home occupied by her parents and Allison. The injuries sustained were, at one time, considered dangerous to life. The burns on Monica Singh “involved her neck, back, and all four extremities … and were estimated at 75% of the body surface.” Those on Allison Menezes were “third degree burns on her neck, both upper extremities and scattered areas on her trunk … and estimated at 60% of the body surface”. That was the evidence of Sister of Mercy, Mary Liguori, a surgeon of the St. Joseph's Mercy Hospital. She examined the patients three days after the incident as persons transferred from another hospital to hers.

4 Two diametrically opposed sets of facts - one by the State, and the other by the appellant - were presented to the jury. For the State, the allegation was that the appellant, enraged by the fact that his infant son had died and the body buried by his wife without an opportunity being offered him, as father, to view it, entered clandestinely what is know in Guyana as the “bottom-house” and there saturated the coats of some puppies, whose yelping was induced by him, for the purpose of having the inmates above respond by rushing downstairs to relieve the animals of their obvious pain and suffering; that when the sisters so responded, the appellant, then carrying corrosive fluid in a bottle, threw the liquid at them as they tried to escape when they realised that the appellant was there and within range.

5 It is common ground that the incident occurred within a restricted area at ground level. Six or seven feet above that was the underside of the greenheart floor of the dwelling house in which the four members of the family resided. The events took place at night but visual identification of the alleged assailant was not at any time an issue.

6 And though it was the sole duty of the State to prove its case to the extent that the members of the jury were to be left sure of the appellant's guilt, the appellant was free to test the State's case by cross-examination of its witnesses and, if he felt so disposed, offer his version of the incident, while assuming in law no burden whatever to convince the jury about it, its justification or appropriateness: Lashley v. R [1959] L.R.B.G. 290; Lett v. R (1963) 6 W.I.R. 92; The State v. Bissessar, Crim. App. C.A.(Guyana), No.19/1975, unreported; Mohamed Omar v. The State (1987) 40 W.I.R. 217.

7 Here, the appellant's version of the encounter was consistently disclosed in his statement to the police and in his unsworn statement made to the jury. They tended to put forward principally for consideration the defences of self defence and accident, but it would appear from the tenor of the summing-up that His Honour, the trial judge, himself discounted those matters and omitted to analyse the relevant evidence. Such an analysis might have assisted the jury to appreciate that there was some merit in one or other of the defences, or might have left them unsure as to the true position, thereby conferring on them the right to set him free. It was C. Lloyd Luckhoo, J.A. (Ag.) who, in The State v. Chandrica Persaud Sanichar (1981) 29 W.I.R. 190, at p. 196 - letter j, said:

“Nowhere In dealing with the specific defences of self-defence and accident did the judge say that it was for the State to negative the defences of self-defence and accident. The judge also omitted to explain that … if the jury was in a reasonable doubt whether to accept the version of the State or that of the appellant, then acquittal must follow.”

8 Moreover, it was the obligation of the State to disprove or negative the defence(s); and proof that the trial judge failed to so warn the jury would predicate that the appellant suffered unfairness at the trial. The function of the trial judge to elucidate the favourable facts or circumstances of or concerning the defence is an obligation devolving on him, and therefore he is not to disregard it or be seen to have omitted to discharge it: Dihal v. R [1960] L.R.B.G. 195; R v. Dinnick (1909) 3 Cr. App. R.77, C.C.A.; R v. Tillman (1962) Crim. L.R. 261; David & Watkins v. R (1966) 11 W.I.R. 37; The State v. Lewis (1975) 23 W.I.R. 266; Evelyn Dick & Alwyn Evelyn v. The State, Crim. Apps. 42 and 43 of 1983, C.A. (Guyana), unreported. However, that obligation does not extend to a defence that is speculative, fanciful or ingenious. See also Chan Keu v. Reginam [1955] 1 All E.R. 266; 269; R v. Cascoe [1970] 2 All E.R. 833.

9 And so in the instant appeal, counsel for the appellant in his Additional Grounds of Appeal urged that:

• 1. The learned trial judge failed and/or neglected to put the defence of self-defence or accident raised by the appellant to the jury and that the omission amounted to a misdirection in law.

• 2. The learned trial judge failed and/or neglected to direct the jury on the meaning in law of the defences raised by the appellant and this amounted to a non-direction and miscarriage of Justice.

10 It emerged at the trial that notwithstanding the fact that both sisters in their evidence-in-chief implicated the appellant, Allison saying that he held “a big coffee bottle in his right hand”, it was she who forthrightly conceded under cross-examination that she did not see him throw anything at either Monica or herself. And despite the fact that Monica was able to say that the appellant stood about five feet from her, his right hand behind his back and “his arm sticking out,” she admitted that she was not facing the appellant all the time; that she had turned around when she felt the burning.

11 In my opinion, the a failure of the two sisters to say that they did not see the appellant throw the liquid on them is explained by their natural, instinctive reaction to take evasive action by instantly turning their backs and not simply ducking without changing or attempting to change direction. But it may be urged that the inconsistencies manifested by both sisters at the trial vis-a-vis what they had told the magistrate at the preliminary inquiry, tended to affect the weight of their evidence. It is true that the explanations offered, as to the 7-year lapse of time between the incident and the trial, and that some of the questions asked at the trial took them by surprise, were plausible. Yet their performance seemed to demand a closer look at the account of the incident given by the appellant to the jury. It was there to be used by the jury to test the State's case. And the trial judge's duty was to show them what features of the defence tended to be supported by aspects of the State's case, or invited the drawing of inferences favourable to the accused. His Honour was then to instruct the members of the jury as to the manner In which they should execute the testing exercise of the State's case, but that at all times they were to presume the innocence of the accused until, and not before, the State's evidence caused them to be sure of his guilt.

12 A great deal has been said by this court and our Caribbean brethren on a trial judge's duties of assistance to a jury, particularly in respect of their analysis and understanding of the case for the defence and the salient matters about which they ought to be aware. But lest the required assistance should be construed out of proportion to the demands of the particular case, I cite Augustine Kachikwu (1968) 52 Cr. App. R. 588 in which Winn, L.J. stated at p. 543:

“It is asking much of judges and other tribunals of trial of criminal charges to require that they should always have in mind possible answers, possible excuses in law which have not been relied upon by defending counsel or even, as has happened in some cases, have been expressly disclaimed by defending counsel. Nevertheless, it is perfectly clear that this court has always regarded it as the duties of the judge of trial to ensure that he himself looks for and sees any possible answers and refers to them in summing up to the jury and takes care to ensure that the jury's verdict rests upon their having in fact [not] excluded any of those excusatory...