Wong v The State
| Jurisdiction | Guyana |
| Judge | Ramson, J.A. |
| Judgment Date | 03 February 2009 |
| Neutral Citation | GY 2009 CA 4 |
| Docket Number | Criminal Appeal No. 12 of 2007 |
| Court | Court of Appeal (Guyana) |
| Date | 03 February 2009 |
Court of Appeal
Singh, C. (Ag.); Ramson, J.A.; Roy, J.A.
Criminal Appeal No. 12 of 2007
Mr. B.C. De Santos, S.C. with Mr. Hookumchand for the appellant.
Ms. S. Ali-Hack- D.P.P. with Ms. Jo Ann Barlow, Deputy D.P.P. for the State.
Criminal law - Murder — Appeal against conviction — Whether summing-up was inadequate — Directions on provocation.
Lord Buckmaster, former Lord Chancellor of England, in an address to the American Bar Association captured the essence of the determination of this appeal.
“…justice was a goddess… whose symbols are known to all, a throne that tempests cannot shake, a pulse that passion cannot stir, eyes that are blind to a feeling of favour or ill-will, and the sword that falls on all offenders with equal certainty and with impartial strength.” — The, Lawyer's Treasury, an anthology selected from the American Bar Association Journal.
Placed in charge of a jury of his peers, 12 ordinary Guyanese ladies and gentlemen, the appellant was convicted of the capital offence of murder after two and one half hours of deliberation. He was sentenced to death by hanging, in accordance with the mandatory provision of s. 100 of Criminal Law Offences Act, CAP 8:01. As we will see later it would appear that the verdict of the jury was arrived at after they rejected his major defences of the self-defence and accident for which the aforementioned Act made provision in s. 106 which expressly countenced that Common Law principle:
“No punishment or forfeiture shall be incurred by any person who kills another person by misfortune, or in his own defence, or in any other manner without felony”
The evidence that emerged was without any undue measure of convolution or prolixity nor was it stacked with divergent minutiae. Equally, it ought not to have presented the jury with a task that required an intelligence quotient beyond the average man in the street. In short compass, five relatively young Guyanese men met at a Been Garden on the East Bank of Demerara River and, in the course of their rendezvous, they consumed a Large and one half bottle of Vodka, with one of them drinking a Mackenson Stout as well. To a libating sociophile, at a maximum, each one of them would have consumed a little more than seven ounces in volume, commonly called “shots”, in more than 5 hours.
Thereafter, 1 o'clock the following morning, invited by the accused who was armed with a wooden bat, they went into a nearby village, Diamond New Housing Scheme, in search of two girls. On the outskirts of that village the accused advised them to arm themselves with pieces of wood in the event they encountered any dogs on their way. Two of them did but the deceased who was called Troy, did not. The dam along which they walked was unpaved and it would appear the deceased and the main witness, one, Esau, were in the lead followed by the accused and two others, Cheezey and Bulbar. On their approach to a building which appeared to have been identified by the accused as the location they would meet with the girls, the deceased and he had an exchange of words followed by the infliction of the fatal injuries to the former at about 3 a.m. This episode is captured in the Caution Statement, given to the Police within less than 12 hours of the incident, to which no objection was offered by Defence counsel before the jury.
“….When we reached de corner we stop and de boy what dead start for talk up where we are going and he lashed me with a bottle and I tek de bat and I put two lash on he at he head. He run and fell down.”
His statement from the dock at the close of the case for the Prosecution corroborates this version save for minor emendations which, though they may have resulted in a diminished inculpatory effect, did not neutralise the admission contained therein. I set out the whole statement for the avoidance of any suggestion of conjecture, or inappropriate interpretation:
“Whilst walking going in Diamond New Scheme, we walking and deh gaffing all the time. Troy tell me I is a mad man, me ain't know which part I'm going. I told him ‘shut he mouth’. I know which part I am going. He start to argue with me. He lash me with a bottle and burst my head. He go to lash me a second time and I also lash him back. That's all”
A Medical Doctor testified for the Defence and verified that the appellant had a “swelling to left temporal region” when he examined him within 14 hours of the altercation in question. Before concluding this summary of the events it is necessary to indicate that the main witness, Esau, testified that after the deceased was given the first lash in his head, he fell down, and the appellant administered five to six more lashes in the region of his head. A Pathologist also testified that there were several injuries consistent with Esau's testimony, some of which could have resulted in his death. It was therefore hardly surprising that the jury reached the verdict that they did.
But was the law relevant to their deliberations properly and adequately explained to them by the trial judge and, secondly, did she give them the amplitude of or the requisite assistance on the factual issues by an appropriate evaluation in resolving those issues that arose during the trial so that the appellant could be said to have had a fair trial? Some 32 years ago some legal wit was recorded as saying: “When a judge begins to sum up at the end of a case, it is for me as if someone has twirled a roulette and we look anxiously to see if the ball will fall in red or black.” (Dictionary of Modern Quotations (2nd Ed), by J.M and M.J Cohen.)
Before embarking on an analysis of the law relating to the questions posed, it may be appropriate to treat with a preliminary though fundamental submission made by senior counsel for the appellant. The issue was raised before the learned trial judge upon the arraignment of the appellant before the jury was empanelled, and again upon the conclusion of the addresses by counsel who appeared at the trial after the case for the defence was closed, but it was the contention of Senior counsel that no formal ruling was recorded by the learned trial judge. However, it was manifest and inexorable from the process adopted that the Trial Judge was not in the least inclined to quash the indictment as preferred by the DPP since the Record reflected these terse words: “Application considered but not granted.” These words were sufficient to constitute a ruling. Even if this were not so, in the STATE v. RUDOLPH BAICHANDEEN (1979) 26 W.I.R. 213, this Court comprising of Haynes, C.; K.S. Massiah, J.A.; D. Jhappan, J.A., held that the trial judge must be taken to have impliedly ruled that a witness was an expert, though he did not expressly rule. This submission is therefore misconceived.
Senior counsel's submission was that the DPP acted ultra vires the relevant provisions of the Criminal Law (Procedure) Act, CAP 10:01 and, the Indictment being a nullity, the trial was therefore a nullity. Ex nihilo nilil fit. More specifically, he identified s. 113 of that Act as the source of the power of the DPP to frame indictments consequent upon the completion of a preliminary Inquiry conducted by a magistrate under ss. 64, 65, 66 and 71 of that very Statute. S. 71 provides so far as is relevant to the instant appeal:
“If, upon the whole of the evidence, the magistrate is of opinion that a sufficient case is made out to put the accused person upon his trial for any indictable offence, he shall….commit him for trial to the next practicable sitting of the Court….”
We pause here out of necessity, as will be seen later as the arguments unfolded, to state that the appellant was originally charged with murder under s. 100 but the learned magistrate committed him for Manslaughter under S. 94 of the aforesaid Act. However, the DPP indicted him for murder for which he was tried, purportedly relying on the plenitude of power given to her in the aforesaid S. 113.
We now proceed to set out in full the provisions of S. 77 thereof as amended by the Administration of Justice Act, 1978 (Act # 21 of 1978):
“(1) At anytime within six months upon the receipt of any documents mentioned in this Title, the Director of Public Prosecutions may, if (s)he thinks fit, remit the cause to the magistrate with directions to re-open the inquiry for the purpose of taking evidence or further evidence on a certain point or points to be specified, and with any other directions he thinks proper; and
(2) Subject to any express directions given by the Director of Public Prosecutions, the effect of remission to the magistrate shall be that the inquiry shall be re-opened and dealt with in all respects as if the accused person had not been committed for trial”
For the sake of completeness “Title” referred to in subsection (1) is intituled: “Proceedings subsequent to committal of Accused person”.
S. 113 of the aforesaid Act therefore became the focal point of the disputation of senior counsel before this Court and is set out in full herein:
“(1) On receipt of the documents relating to the Preliminary inquiry, the Director of Public Prosecutions, if (s)he sees fit to do so, shall at anytime institute those criminal proceedings in the Court against the accused which to him (her) seem legal and proper; and,
(2) The indictment against the accused person may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any examination or deposition taken before a magistrate in his presence, being counts which may lawfully be joined in the same indictment.”
The contention of senior counsel takes a binary form and it is paraphrased thus:-
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(i) the D.P.P was required to remit the matter to the magistrate in pursuance of...
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