RAWLINGS had been convicted of causing grievous bodily harm on a Chief Prison Officer, but through the wrongful admission of inadmissible immigration card to provide for the tendering in evidence of two depositions of missing witnesses, he was freed by the Guyana Court of Appeal. The Appellate Court, constituted by Chief Justice Harry Bollers, and Justices of Appeal J. A. Luckhoo and Guya Persaud, found that since the two doctors had left the country, and their evidence in  relation to depositions about grievous bodily harm was inadmissible, via the Immigration record,  there was no evidence that the victim  had suffered grievous bodily harm, and as a consequence, the appeal had to be allowed.
However, while being saved from the sentence and whipping, which the High Court found  adequate for the grievous bodily harm offence, the Appellate Court felt that there was sufficient evidence against  the accused to maintain a conviction of common assault.   A conviction for that offence was substituted.
The facts of the case disclosed that the appellant was convicted at the assizes of the offence of causing grievous bodily harm.  The depositions of two medical witnesses were tendered.
A police constable  testified that he saw these witnesses leave the colony, and that he had checked  the local addresses which they gave to see if they had come back, but he did not say with what results.   He also testified that he had checked the records of the Immigration Office, and that as a result of this, concluded  that the witnesses had not returned.
On appeal, it was held that:
(i) The evidenced relating to the immigration records was inadmissible, as there was nothing to show  that the records were available  for public inspection, and that they were brought  into existence  for that purpose.   The records were not, therefore, public documents within the meaning of the exception to the hearsay rule relating to such documents;
(ii)  the depositions were inadmissible, and consequently,  there was no evidence of  the infliction of grievous bodily harm;
(iii)  a conviction of common assault would, however, be substituted.

The appeal was allowed.
Mr. J.C.  Gonsalves-Sabola,  Senior Crown Counsel, appeared for the Crown, and Mr. Donald A. Robinson for the appellant.
Justice of Appeal, Mr. J.A. Luckhoo, delivered the judgment of the court.   According to him, on February 3, 1965, the appellant was a prisoner at the gaol serving a sentence, when at about noon, the Chief Prison Officer, Hubert Humphrey,  had cause to order his search, which was resisted. “There was a struggle,” said Justice Luckhoo, “but he was held.  In his inner shirt pocket, money to the amount  of $1.25 was found, and in an inner pocket of his shorts,  four  packets of cigarettes were discovered, after which the appellant said: ‘You make the  officers  take away meh thing; ah gwine stab you sk***.’  He was then taken to the punishment cells.
“About 3.30pm that day, at the prison’s dispensary, the appellant again used threatening language to Humphrey , left him, and went down the steps of the dispensary, broke off the handle from a bath broom, and with the handle in his hand, was evidently returning  to the dispensary when he passed  Humphrey  coming down the stairs.   Humphrey turned back. The appellant suddenly turned around and started to lash at Humphrey, who put up his left arm  to protect  his head  and suffered injuries  thereto.  Other prison officers ran to Humphrey’s assistance, and  the appellant was subdued and taken away.
“The appellant was charged for causing grievous bodily harm with intent,  contrary to Section 57  (a) of the Criminal Law (Offences) Ordinance, Chapter 10, and was convicted and sentenced to be imprisoned for a period of two years, and to receive a whipping of six strokes.  This imprisonment was to commence  at the expiration of the sentence  of five years  imposed on him by Justice Persaud on October 20, 1965.    His appeal to this court against this conviction and sentence was argued on two grounds, viz:
(a)     That the trial judge did not put his defence adequately to the jury; and
(b)     that inadmissible evidence, consisting of the  depositions of Doctors Ronald Persaud and Iris Chin See (who were not present to give evidence at the trial) was wrongly admitted.”
Continuing with his judgment, Justice Luckhoo said: “We could find no merit in the first ground of appeal.   The defence of self-defence was fairly put, and left to the jury.  On the Crown’s case, self-defence  did not arise at all; but there was an abundance  of evidence to show a clear settled  intention  on the part of the appellant  to injure  Humphrey.
“The second ground of appeal, however, raises an issue of some substance: The  depositions of the doctors (Persaud and Chin See), which provided the only evidence of grievous bodily harm , at the trial, could  only have been given  and received  in evidence,  if there was due compliance  with Section 95 of the Evidence Ordinance, Chapter 25, as amended by the Miscellaneous Enactments (Amendment) Ordinance, No. 29 of 1961.
“The question which arose was whether the last requirement (underlined) of sub-s. (4) of Section  95 below was fully satisfied  by the evidence. It reads:
“It shall be sufficient evidence  of absence from British Guiana, within the meaning of this section,  to  prove that the deponent  was onboard a vessel or an aircraft on its outward  journey from British Guiana,  bound for some part  or place beyond British Guiana, and that on inquiry being made  for the deponent  before trial at his last or most usual place  of abode or business, he could not be found.
“It must be noted that the above subsection really states what shall be deemed  to be sufficient  evidence of absence  from the country when a deponent  has left it,  but  it does not preclude  other modes of proving  that fact.
“It provides a perfectly simple method of proof of absence from the country, at the material time,  to justify the reading of depositions as evidence,  which the  Crown Prosecutor followed up to a point ; he called the witness,  Vernon Junor, a police constable , and one of the immigration officers  attached to the Immigration Department, Atkinson  Field, to prove, in effect, the departure of the absent witnesses, who boarded aircraft on different dates on outward journeys from the country, bound for places beyond it;  he gave their last addresses in this country.”  
After referring to a number of decided cases, Justice Luckhoo said: “In  this case, it is not known what  immigration records Junor examined, how and  by whom  they were kept, and no attempt  was made to produce  the original or a certified copy thereof.
“We find that the necessary foundation was not fully laid for the due reception of the deposition in evidence, and consequently, there was no evidence in  proof that Humphrey had suffered grievous bodily harm.
The appellant, then, could not have been properly convicted on the indictment as laid.
“If Junor had had  personal knowledge of all those persons who had returned to the country  between the dates  of the deponents’ departures and the trial, then he could have sworn (perhaps after refreshing  his memory  from records  made by him)  that the deponents  did not return.  This would have been a different situation.
“In the result, we feel that the appeal should be allowed. In our opinion, however, there is sufficient evidence upon which a conviction  of common assault, contrary to Section 43  of the Criminal Law   (Offences) Ordinance , Chapter 10, can be maintained.
“We propose, therefore, to substitute  a conviction for that offence, and to impose a sentence of one year’s  imprisonment,  to commence at the expiration of the sentence of five years imposed on the appellant on the 20th   day of October, 1965.   The Appeal is allowed.”