Murder of Essequibo businessman…
–    Upholds conviction, death sentence
IN 1975, the Guyana Court of Appeal affirmed the conviction and death sentence handed down by the jury against Carl Van Rossum and Carroll Halley for the robbery and murder of Essequibo businessman, Donald Yhap on the night of March 11, 1974. The two felons, who resorted to killing to effect a robbery at Yhap’s Affiance home, had appealed against the ruling on the grounds that the trial judge at the jury trial had withdrawn the count of manslaughter from the jury, and had failed to direct the jury that the deceased had died from cardiogenic shock, which could be caused by fright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 the Court of Appeal, comprising Chancellor Harry Bollers  and Justices of Appeal, Messrs Guya Persaud and Victor Crane,  held that there was no miscarriage of justice in the matter, 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 5:00pm, the appellants visited the spirit shop owned by Donald and Catherine Yhap at Affiance, on the Essequibo Coast.  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 left.  They then proceeded to pull Yhap out of the door of the shop. They punched and maltreated him, while they beat, bound and gagged his wife.  Having relieved the cash drawer and two iron safes of over $11, 000 in cash, the pair left the premises.

About half-an-hour afterwards, Mrs Yhap managed to free herself of her bonds and went to the northern door where her husband was lying on the proprietor’s side of the counter. He had a black-and-blue mark on his forehead, a wound on the left temple, another under the left side of the chin and appeared to be dead.

On March 18, Catherine Yhap attended two separate identification parades.  At the first, she recognized 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, through the shop 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 used by the appellant, Van Rossum, as gathered from both his caution statement and his statement 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, he collapsed without any struggle before they had even touched him; though there was some struggling with Yhap to get him outside for fresh air.  He said that had he known that Yhap had gone into cardiogenic shock and was dying, he would have tried to get him help.

Halley’s defence, on the other hand, was by way of an alibi stating that he was not on the Essequibo Coast on the day of the alleged incident; that he was never at Yhap’s; and that he 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 had erred when he did not leave the issue of manslaughter to the jury, which arose within the felony-murder rule. That is that he ought to have told them that had they found that Yhap’s death was not brought about by the violence perpetrated by the appellants, but that he had in fact 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 have been guilty of murder, but of manslaughter instead.

Secondly, on behalf of the appellant Halley, it was argued that there was failure  to direct the jury that Van Rossum’s unsworn statements, 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, and that the judge was therefore right in withdrawing the issue of manslaughter.

He further contended 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, he said, was clear evidence on their part that they, at the time they entered the shop, had an intention to use violence.

Colleague Appeal Court judge, Justice Guya Persaud bolstered this argument saying 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;

Another colleague, this time around Justice Victor 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 have also been clear to him,” he is quoted as saying, “that the violence received was the real or substantial cause of death, and that 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.”

Citing the second point the Chancellor made, this being that the verdict of the jury would have been the same whether or not the judge had directed them that Van Rossum’s statements were not evidence against Halley, Justice Persaud pointed out that though the judge admittedly failed to give the jury the customary warning, he did order that bits of paper 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,” he said.

Justice Crane however begged to differ saying 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.”

He went on to say that the exercise of editing a statement must be done in accordance with the law. “In this case,” he said, “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.”

In reaching its decision, the Appellate Court had referred to 24 cases in support of its ruling in the affirmation of the jury’s verdict.

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

As a result, as happened 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 went into shock.  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 injury number two (the laceration on the left side of the neck)could have been caused by a fall on a cardboard box.
He said the injury could have been caused by a fall on a wooden box with sharp edges, but that this was improbable, since the laceration was clean-cut with no surrounding abrasions. He said too that all the external injuries by themselves could not have caused death, and could have been inflicted after death; a person with a heart condition like that of the deceased, he said, might very well have died immediately on being frightened or sometime after.