THE failure of a trial judge to direct an assize jury on the use of conflicting testimony of witnesses led to three accused being convicted, only to be freed later by the Guyana Court of Appeal in 1971. Dealing with the subject of break and enter and larceny, the Appeal Court found by a majority judgment  that Abdulla and two others were, among other things, convicted on hearsay evidence, not admissible, which could not be treated  as evidence, identifying  the appellants with the crime.

That judgment  also found that in view  of the discrepancies between the evidence  of the virtual complainant and the policeman to whom she had given a statement of events, the judge ought to have left it to the jury to decide who was speaking the truth.

The appeals were allowed, and convictions and sentences set aside.

The court was constituted by Chancellor E V Luckhoo and Justices of Appeal Guya Persaud and Victor Crane.

Mr. C. Lloyd  Luckhoo, S.C., and  Mr. Bhairo Prasad, S.C., appeared for the appellants,  while Mr. W. G.  Persaud represented the State.

The facts of the case disclosed that the only eyewitness of alleged robbery was the virtual complainant.  At one stage of her testimony, she said she had not shouted out the names of the assailants, but later said that she did.   There was a material conflict between her evidence  and that of a police constable  to whom she had given a statement of events, as to whether she was asleep when her assailants entered her house.

The Appeal Court, with Justice Guya Persaud dissenting, held that there arose  a necessity  for the judge to have directed the jury that the evidence of the shouts was hearsay, not admissible,  and could not be treated as evidence identifying  the appellants; and that  in view of the  discrepancies between the evidence of the virtual complainant  and the policeman to whom she gave a statement  of events,  the judge ought to  have left it to the jury to decide who was speaking the truth.

Justice Crane, with Chancellor Luckhoo concurring, declared in his judgment that on the presentment of the Director of Public Prosecutions, the three appellants were arraigned on a two-count indictment,  respectively  charging them with breaking, entering and stealing merchandise from  the building  of Jagdeo Budhram, and robbing his wife, Rajdai,  under arms, of a radio, money  and a quantity of jewellery contrary  to Sections 229 (a) and 222 (c)  of the Criminal Law (Offences) Ordinance, Cap. 10, in the following circumstances:

“Jagdeo Budhram, a businessman of No.64 Village, Corentyne, resides with his wife and children in a two-flat premises, the upper consisting of living quarters situate above a parlour, and motor spare parts sections below.

“On Xmas night, 1969, at about 7:15pm,  having secured  the doors and windows of the lower flat, he took the day’s sales, some $240, to the upper flat,  access to which  is gained by an interconnecting stairway. There are two bedrooms there.  In the smaller, there was an iron safe already containing  about $2,000.

“Budhram deposited  the day’s sales there, locked the safe, and gave the key, which was included in a bunch , to his wife.   She then put them in the drawer of a writing-desk in the same room as the safe, and then Budhram left for Skeldon at about 8p.m. to attend a cinema show with his three children, leaving Rajdai alone in the upper flat.

“There was, however, one other person about the premises — the night watchman;  but he was useless as such,  since  he lay in drunken slumber outside the building.”

What happened next was told to the jury by Rajdai, she being the only eyewitness to it.   Her experience was indeed a harrowing one, according to Justice Crane. She said that after her husband left with the children,  she began to sew at her machine. At 10:15pm, she went to the toilet , and on coming out, saw the three accused “rushing upstairs” along the interconnecting stairway .  She became afraid and shouted out.

The first accused had a small black and red gun, the second what appeared to be a knife, and the third a cutlass.   As she shouted, she said, the third accomplice put one hand over her mouth and with the other hand, held the cutlass against her head, while the second accused pressed his knife against her throat.  The first held the gun to her chest .   Rajdai went on to relate how the three intimated that their quest was money, which they knew to be in the bedroom, and how when she denied there was any money upstairs, they insisted that she kept it there, demanding from her the key to her chest in the bigger bedroom. In order to deceive them, she told them  where the money was when they continued to press their weapons on her.

To distract their attention further, possibly with a view to gaining time, Rajdai told her assailants the key was underneath the pillow of her bed.   All this time, the third accused was doing personal violence to her.  They slapped her on the face and threatened to chop her up if she did not give them the key. It was then that she broke down and told them where it was.

The safe was opened by the first accused, and the contents, which consisted of about $2, 240, a gold tillarie, a pair of gold bangles, and 15 gold  brooches, removed.

All the while the safe was being rifled, the third accused was still doing violence to her:  He pushed her outside of the  smaller bedroom, holding her by the throat, and stuffed a shirt into her mouth as a gag. Meanwhile, the first and second accused, who were in the smaller bedroom  for about half an hour, l
eft with bulky pockets, the second taking with him  her transistor radio.

Both ran downstairs, where they were joined by the third accused, who at that time released her, thus enabling her to run to the window and shout out for the watchman, only to be answered by her daughter, who had just returned from the cinema.

On being informed  what had transpired during his absence, Jagdeo  Budhram  immediately went to the police  station,  returning shortly  afterwards with the police, one Constable  Dorsett, who carried out an investigation into the matter, leading to the arrest of the three accused and their subsequent  arraignment  and conviction in the Berbice High Court, where they all pleaded they were mistakenly  identified by Rajdai and raised defences of alibi.

After perusing the evidence and the directions at the jury trial, Justice Crane concluded his judgment by saying: “We are decidedly of the opinion that was the kind of direction to which  the accused were entitled,  in view of the contradictory state of the evidence of prosecution witnesses Rajdai Budhram and PC Dorsett.

“The principle involved is greater than the case,  for we cannot feel certain that the accused, by reason of the non-direction, did not lose the chance of an acquittal.  For the trial judge to have left it to the jury to say whether P.C. Dorsett was an unreliable witness  in the particular respect  of which he spoke, without saying more than he did, was, in our opinion, a non-direction amounting to a misdirection which vitiated the convictions and sentences.”