-Finds murder accused not guilty, on no-case submissions
IN 1984, the Guyana Court of Appeal found that a High Court had judge usurped the  functions of the jury in a murder trial  when, instead of sending the matter to them, he found murder accused, Alvin Mitchell not guilty of the murder of 32-year-old waitress, Nastawantee Persaud on defence no-case submissions. He then directed the jury to return a formal verdict of ‘Not Guilty’ in favour of the accused, whom he subsequently discharged.

The then Director of Public Prosecutions, believing that the circumstances of the case required the judge to send the case to the jury for a verdict, utilised his power under the law to  request the Appellate Court to review the matter.

During the appraisal, Assistant Director of Public Prosecutions, Mr. Ian Chang, S.C. with Mr. Albert  Baldeo,  represented the DPP, while Mr. David Wray appeared for Mitchell, the murder accused.

The Court of Appeal, constituted by Chancellor Keith Massiah and Justices of Appeal Messrs. Charles Fung-A-Fat and Frank Vieira, who conducted the review, was critical of the trial judge’s action, deeming it highly irregular.

The Court contended that where the defendant in a criminal proceedings submits a plea of  “no-case” to answer  at (or before) the end of  the prosecution case, the trial judge ought to send the case to the jury, if, in his opinion,  there is sufficient evidence on which a reasonable jury (properly directed) might (in the judge’s view) convict.

They said that if, however, the evidence is so unsatisfactory or unsound that no reasonable jury could convict on it,  or if the evidence (even if all of it is believed ) is so weak, tenuous or insufficient  that it cannot yield a lawful conviction, the trial judge should withdraw the case and direct the acquittal of  the defendant.

Chancellor Massiah, in noting that the evidence in the court supported the view that the jury should have been asked to decide the fate of the accused, referred to 35 cases in support of the Appellate Court’s judgment, including that of R.V. Hookoomchand and Sagur (1897) LRBG 12.

One of the questions the DPP posed to the Court of Appeal was:

“Was the trial judge correct  in law  on the evidence led by the prosecution in this case in ruling that a case had not been established, requiring  the accused person to lead a defence?

Setting out the facts in his judgment, Chancellor Massiah said:

“At about 8:30am on Sunday, February 7, 1982, a party of policemen attached  to the Bartica  Police Station made a macabre discovery at 2 Miles, Bartica-Potaro-Road. There, in a clump of bushes about ten feet from the road, they discovered the dead body of 33-year-old Nastawantee Persaud.   The body, clothed in a blouse that was unbuttoned, faced upwards, and was exposed from the waist down, for the skirt was raised, and the under garment was missing. The legs were spread apart, and there oozed from the vagina what appeared to be blood.  There was grass in the pubic area.  Several injuries were seen.

“Shortly before they made the discovery,” Chancellor Massiah said, “the police party,  about a half  mile away, at one-and-a-half-miles Bartica-Potaro Rod (a point nearer to Bartica  than 2 miles),  had come across a number of articles which were identified  as the property of the deceased by Lilapattie Romohan, the niece of the deceased.

“Among the articles found,” he said, “was a shoulder bag, which was lying on the road. On the bag were what appeared to be drops of blood.  About five feet away, in a clump of bushes, a pair of yellow panties was found. Attached to it was a sanitary napkin.   What appeared to be blood was seen both on the panties and the napkin.   Nearby was a girdle.

“The police party which Lilapattie  Romohan accompanied  to the Bartica-Potaro road  had been galvanised  into action  when Romohan reported to the police station  on the morning of 7th February  1982 that her aunt was missing  from home .

“At about 3o’clock  that morning , Romohan , one Waveney  Gill, and the deceased together left ‘The Nest’ discotheque in Fifth Avenue, Bartica, where they worked as waitresses.  (The word  ‘discotheque’  is popularly  contracted  into  ‘disco’  without any connotative loss, and that variant  will be used  in this judgment.)   Romohan and her companions had worked the night shift, and were on their way to the deceased’s home in Fourth Avenue where they all lived.

“On their way home, they met Alvin Mitchell, who was driving a Land Rover.   Three other men were in the vehicle.  Mitchell was a regular patron of ‘The Nest’, and the night before, he was seen there at a dance.  Mitchell offered to take them home on the vehicle. Gill and  Ramohan declined he offer.   After some apparent hesitation, the deceased accepted, declaring to her companions that she would reach home faster than they.

“Her expectations never materialised,  for when Gill and Romohan reached home on foot, they discovered, to their consternation, that the house was securely locked and that the deceased had not arrived there.  Overcome by tiredness, they soon fell sleep. When Romohan awoke that morning at about 7 o‘clock, the deceased was still not there.   Naturally, Romohan became alarmed.  She then went to her uncle’s home and inquired about the deceased, but there she learnt nothing.  She next went to the Bartica Police Station and reported the matter.  It was then about 8a.m.   The police  left soon after for 1½ Miles,  for the Bartica-Potaro road, on the strength of what one Benjamin had told them, and  they found the articles already mentioned about;  shortly afterwards, they discovered the dead body of the deceased.

“The cumulative circumstance led the police to conclude that the deceased had been murdered.  Suspicion fell on Alvin Mitchell (the person last known to have been with her), who by then had hastily fled to Georgetown.  He was arrested there on February 8, 1982 and taken to Bartica Police Station on February 11, where he was duly charged with murder.

“Mitchell was subsequently indicted with murder, and faced his trial at the criminal assizes in Georgetown in January, 1984.   The evidence against him was almost wholly circumstantial.   At the close of the prosecution’s case, counsel for Mitchell submitted that there was no case to answer.  The prosecution vigorously contended that there was.  The trial judge upheld the submissions and formally directed the jury to return a verdict of ‘Not Guilty’.

“Mitchell was accordingly discharged.”

The Appellate Court, in reviewing the case as requested by the DPP, concluded that “When regard is paid to all those events and evidentiary circumstances, it seems … clear beyond peradventure, that there is sufficient evidence on which a reasonable jury, properly directed, might have convicted Mitchell.”

According to Chancellor  Massiah: “That satisfies me the test in Hookoomchand and all the other kindred cases which explain the relevant Common Law position, including, of course, the local cases that gave benediction to Hookoomchand.    Whether the jury would have convicted Mitchell is not a consideration that properly comes within my purview.  The evidence is sufficient on which they might have done so, and that is enough for present purposes.”