TWO appellants including a policeman, who in 1960 were unlawfully convicted for conspiracy to prosecute for unlawful possession of bush rum, were freed by the Federal Supreme Court because the evidence was not supportive of a conspiracy under the ordinance.
The appellants, Ramsonahai and Police Constable Duke who had been convicted of a plot to incriminate Mohamed Ali in a bush rum offence, had their appeals allowed.
Queen’s Counsel J.O. F. Haynes represented the appellants while Mr. E. A. Romao appeared for the Crown, at the hearing of the appeal, which lasted 4 days in 1961.
The court was constituted by Chief Justice Gomes and Justices of Appeal Wylie and Lewis.
The facts of the case disclosed that the appellants sent a bag containing two bottles of bush rum by a messenger to Mohamed Ali, the driver of a car, with instructions to the messenger to tell Mohamed Ali that he (the messenger) would return later to be taken up the coast. The messenger did what he was told and Mohamed Ali received the bag and kept it in his car.
The second appellant, who was a police constable, then telephoned the Force Control Office and reported that Mohamed Ali had just received a bag containing bush rum. Mohamed Ali’s car was located by a police patrol car and the bag with the bush rum was found in it by the police. There was other evidence clearly establishing that the appellants had plotted to incriminate Mohamed Ali by false evidence.
The indictment charged a conspiracy to prosecute Mohamed Ali, knowing him to be innocent, for the summary conviction offence of being in unlawful possession of bush rum and was laid under section 330 of the Criminal Law (Offences) Ordinance, Chapter 10 [B.G.]. That section reads as follows:
“If anyone conspires with another to prosecute any person for an alleged offence knowing that person to be innocent thereof, the offender shall be guilty of a felony and on conviction thereof shall be liable-
(a) to penal servitude for life if the person prosecuted, or intended to be prosecuted, in pursuance of the conspiracy might, on conviction for the alleged offence, be sentenced to death or penal servitude for life;
(b) to penal servitude for fourteen years if the person prosecuted, or intended to be prosecuted, in pursuance of the conspiracy might, on conviction for the alleged offence, be sentenced to penal servitude for any term less than life; and
(c) to penal servitude for seven years if the person prosecuted, or intended to be prosecuted, in pursuance of the conspiracy might, on conviction for the alleged offence, either on indictment or before a magistrate’s court, be sentenced to imprisonment but not to penal servitude.”
The Federal Supreme Court held:
(i) the evidence did not support the conclusion that either of the appellants intended to institute a prosecution by personally laying a complaint or information;
(ii) the words “to prosecute” in section 330 are to be construed in their strict sense and are not to be extended to include a conspiracy between two or more persons to cause another person to be prosecuted. Appeals allowed.
The appeals were against conviction by the Supreme Court of British Guiana of conspiracy to prosecute for the offence of being in unlawful possession of bush rum.
Chief Justice Gomes who delivered the judgment of the court noted that the two appellants, Samuel Ramsonahai and Roy Duke appealed against their convictions for conspiring together to prosecute one Mohamed Ali, knowing him to be innocent, for the summary conviction offence of being in unlawful possession of bush rum.
According to the Chief Justice, the section under which the appellants were indicted is section 330 of the Criminal Law (Offences) Ordinance, Chapter 10 [B.G.].
Referring to the facts of the case, the Chief Justice disclosed that on the morning of October 24, 1959, the appellant Samuel Ramsonahai left his home on the East Coast and drove to Georgetown by car. By prearrangement, he picked up on the way, first the appellant Duke, who is a police constable, and then a man named Naraine Persaud. On arrival in town, Ramsonahai took a bag which was in the car between where the two appellants were sitting, gave it to Persaud and, in the hearing of the appellant Duke, told him to go to the gasoline station and enquire for Pundit’s car and deliver to the driver, and to say that he, Persaud, would return later to be taken up the coast. Naraine did what he was told to do and the driver of Pundit’s car, who was Mohamed Ali, received the bag and kept it in his car, the number of which was HD 444.
Either before or about the time that Naraine delivered the bag the appellant Duke rang up the Force Control Office and reported that Mohamed Ali driving car HB 444 had just received a bag containing bush rum. The message was immediately relayed by a patrol car which located Ali’s car, in which was found the bag that Naraine had delivered to Ali. The bag contained two bottles of bush rum. The other evidence in the case clearly established the fact that the two appellants had acted jointly in causing the bush rum to be ‘planted’ on Ali.
Continuing his judgment the Chief Justice declared that there are three grounds of appeal: the first is common to both appellants, the second relates to the case against the appellant Duke and the third to the appellant Ramsonahai only.
He added, “The three submissions made by counsel, who appeared for both appellants, are (i) that the evidence did not establish the offence for which the appellants were indicted and convicted; (ii) that the judge misdirected the jury by failing to direct them that the onus of proving whether the statement alleged to have been made by Duke to the Police was made voluntarily or not was on the prosecution , and also that if they had any reasonable doubt on the question of whether or not the statement, if made was a voluntary one, they should reject it ; and (iii) that the case against Ramsonahai was unduly prejudiced by the failure of the judge to order a separate trial. Counsel also made submissions on other questions that could or might arise if those three submissions were not upheld or in the event of the second or third submission being sustained.
“With regard to the final submission, counsel contended that, while the evidence may be sufficient to prove the commission of other statutory offences or of an indictable conspiracy at common law, it did not establish a contravention of the provisions of section 330 of Chapter 10, because it did not prove that the agreement was that either of the alleged conspirators would prosecute Ali, that is to say, that one or other of them would actually institute proceedings by laying a charge against him: In other words, counsel maintained that an offence is not committed if the evidence discloses an intention merely to cause a public prosecution to be instituted against him.
“Counsel advanced three reasons in support of his argument. He stated that the ordinary and primary meaning of the words “to prosecute” is to commence proceedings by laying a complaint or information. Secondly, that the section is a highly penal one and on that account the words “to prosecute” should be strictly construed and not extended to include the phrase “to cause to be prosecuted”; and thirdly, that if the legislature intended such an extension of the words “to prosecute” it would have said so, as it did in several other sections of the same enactment.
“While it is clear that any person may commence a prosecution against another person, we agree with counsel for the appellants that the evidence does not support the conclusion that either of the appellants (notwithstanding that the appellant Duke is a constable) intended to institute a prosecution by personally laying a complaint or information against Ali. We do not, therefore, consider that it would be profitable to examine and deal with the evidence that was put before the jury in regard to police regulation and procedure before a complaint is made by a member of the police force.
“The point is a novel one, and research has not revealed any authority on it. We, therefore, deal with it according to the ordinary rules of construction”, the Federal Supreme Court disclosed as it allowed the appeals and set aside the convictions and sentences.