‘Withdrawal of manslaughter from jury justified’ – Appellate Court

IN 1975, the Guyana Court of Appeal affirmed the conviction and death sentence by the jury, of Carl Van Rossom and Carroll Halley for the robbery/murder of Affiance businessman Donald Yhap on the night of March 11, 1974.

The house-breakers and murderers, who had killed the Essequibo businessman, to effect a robbery at his Affiance premises, had appealed against the ruling on the grounds that the trial judge at the jury trial, had withdrawn the count of manslaughter from the jury, and had failed to direct the jury that the deceased had died from cardiogenic shock which could be caused by fright and not necessarily violence.

But, that Court of Appeal, comprising, Chancellor H.B.S. Bollers (ag.), and Justices of Appeal, Guya Persaud and Victor Crane, held that there was no miscarriage of justice in the case because the jury would have returned the same verdict whether they were properly directed or not.

The facts revealed that on March 11, 1974, at about 5.00 p.m. the appellants visited the spirit shop of Donald and Catherine Yhap at Affiance, Essequibo. After consuming rum and Pepsi-Cola for about an hour or so they left the premises but returned after closing time when all the customers had gone. They then proceeded to pull Mr. Yhap out of the door of the shop. They punched and maltreated him, while they beat, bound and gagged Mrs. Yhap. Having rifled the cash drawer and two iron safes of over $11,000, the appellants left the premises.

About half-an-hour afterwards, Mrs. Yhap managed to get up from where they had left her. She freed her hands from the bonds that tied them and went to the northern door where her husband was lying on the sellers’ side of the shop. He had a black-and-blue mark on his forehead, a wound on the left temple, another wound under the left side of the chin and he appeared to her to be dead.

On March 18 Catherine Yhap attended two separate identification parades. On the first, she saw the appellant Halley and identified him as the man who had beaten, gagged and tied her up. On the second parade, she identified the appellant Van Rossum as the man who had pulled her husband Donald Yhap through the door with Halley’s assistance. Both appellants were also identified by three customers who were in the shop on the evening in question and saw them there.

The autopsy report on the deceased Yhap was supported by medical evidence. It showed he had sustained serious injuries to his neck and body, and that in the doctor’s opinion the cause of death was cardiogenic shock.

The State based its case on the proposition that the accused persons had used violence on the person of Donald Yhap, and had killed him in furtherance of the commission of a felony of violence.

The defence of the appellant Van Rossum as gathered from both his caution statement and that from the dock, was that he had gone to Yhap’s premises along with a ‘friend’ to steal, but not to kill anyone, and that when Yhap saw them, Yhap collapsed without any struggle before they had even touched him; though there was some struggling with Yhap to get him outside for fresh air. However, if he, Van Rossum, had known that Yhap was dying from cardiogenic shock he would have tried to get him help.

The defence of the appellant Halley was an alibi: that he was not on the Essequibo Coast on the day of the alleged incident; he was never on Yhap’s premises and knew nothing of Yhap’s murder.

At the Assizes both accused were convicted of Yhap‘s murder, and on appeal, it was contended, firstly, that the trial judge erred when he did not leave the issue of manslaughter to the jury which arose within the felony-murder rule, i.e., he ought to have told them that if they found the death of the deceased was not brought about by the violence of the appellants, but that Yhap had died from cardiogenic failure during the course of the furtherance of the commission of the crime of violence, then the appellant Van Rossum would not be guilty of murder, but guilty of manslaughter instead.

Secondly, on behalf of the appellant Halley, it was urged that there was failure to direct the jury that the unsworn statements of Van Rossum which he had given in writing to the police and from the dock were not evidence, and could not be given in evidence against Halley:

On the first point, Chancellor Bollers held that it was clear from the evidence that violence was in fact used on the person of the deceased. The judge was therefore right in withdrawing the issue of manslaughter from them.

Secondly, he said that the medical evidence was merely opinion formed as the result of a post-mortem examination. The use of a dagger and a knife by the appellants was clear evidence on their part that they, at the time they entered the shop, had an intention to use violence.

Justice of Appeal Persaud had said that where an accused person during the course of the commission of a felony involving violence, uses such force against his victim which may cause death or grievous bodily harm in order to effect the felony which he had set out to commit, and the victim dies, he would be guilty of murder;

Justice of Appeal Crane noted that it must have been clear to the trial judge that the legal cause of death of the deceased was the violence he received at the hands of his assailants. It must also have been clear to him the violence received was the real or substantial cause of death… Accordingly, the judge would not have been justified in leaving the alternative verdict of manslaughter with the jury since the proven facts could not reasonably admit of such a view;

On the second point, that Acting Chancellor said that the verdict of the jury would
have been the same whether or not the judge directed them that Van
Rossum’s statements were not evidence against Halley;

On this point Justice of Appeal Persaud pointed out that the judge admittedly failed to give the jury the customary warning, nevertheless, he reminded them that he had ordered bits of paper to be pasted over certain positions in Van Rossum’s statement and exhorted them not to speculate about what had been done. There was therefore no necessity for a warning since there was nothing in the statement after the warning had been given;

But Justice of Appeal Crane declared that the trial judge wrongly exercised his discretion to edit Van Rossum’s caution statement in the way he did, viz., by pasting
pieces of paper to delete the name of Halley and to substitute the word “friend” wherever it occurred in van Rossum’s statement.

Crane went on to say that the exercise of editing of a statement must be done in accordance with the law.

According to him, “In this case, it was exercised against a practice which had hardened into a clear rule of law, which simply requires a trial judge to warn the jury that one man’s confession is no evidence against his co-accused, but is evidence solely against himself.

“Blotting out Halley’s name in the statement was therefore unnecessary. However, there was no miscarriage of justice in this case, because the jury would have returned the same verdict whether they were properly directed or not.

The Appellate Court had referred to 24 cases in support of its ruling in the affirmation of the jury’s verdict.

The Appellate Court had also referred to defence counsel’s argument on the first point, to the effect, is that the doctor who performed the post-mortem examination on the body of the deceased had said in evidence that cardiogenic shock meant shock as a result of the heart failing either by sudden stopping, or by suddenly starting to beat irregularly, or by beating at such a low rate that enough blood cannot be pumped out from the heart, and the deceased was suffering from a heart disease.

As a result, as in Yhap’s case, fright or fear brought on by the sudden appearance of strange men could have caused cardiogenic shock and led to his death. A combination of physical exertion and fear or fright brought on by the sudden appearance of strange men could also have caused cardiogenic shock and led to Yhap’s death.

Under cross-examination, the doctor admitted that in a shocked state a person could fall down just like that, and that the deceased had died as soon as he was shocked. He agreed that injury number one =- the superficial abrasions – and injury number three – multiple swellings – could have been caused by a fall ; but he did not agree that the injury number two – the laceration on the left side of the neck –could have been caused by a fall on a cardboard box.

He stated that that injury could have been caused by a fall on a wooden box with sharp edges, but this was improbable because the laceration was clean-cut with no surrounding abrasions. He stated that all the external injuries by themselves could not have caused death and they could have been inflicted after death; a person with a heart condition like that of the deceased might die immediately on being frightened or sometime after..