-but gets 12-year sentence for manslaughter
THE Guyana Court of Appeal in 2009 allowed a murder appeal in part, granting the condemned accused a  manslaughter verdict with 12 years prison sentence.
The court was constituted by Chancellor (ag.) Hon. C.A. Singh, CCH, Hon. C.R. Ramson,   SC. and Hon.  B.S. Roy. The accused, who was involved in a rum spree with friends on the day in question, was involved in a fight with one of them, called  Troy, whom  he struck with a bat, resulting in death.
The judgment of the court was delivered by Justice Ramson.
Placed in charge of a jury of his peers, 12 ordinary Guyanese ladies and gentlemen, the appellant was convicted of the capital offence of murder after two-and-a-half hours of deliberation.
He was sentenced to death by hanging, in accordance with the mandatory provision  of S.100 of Criminal Law Offences Act, Chapter 8:01.
Delivering the judgment, Justice  Ramson said: “As we will see later, it would appear that the verdict  of the jury  was arrived at  after they rejected  his  defences  of the self-defence and accident for which the aforementioned  Act made provision in S. 106, which expressly  countenanced that Common Law principle:
‘No punishment or forfeiture shall be incurred  by any person who kills another  person  by misfortune , or in his own defence,  or in any other manner without felony.’
“The evidence that emerged was without any undue measure of convolution or prolixity, nor was it stacked with divergent minutiae.  Equally, it ought not to have presented the jury with a task that required an intelligence quotient  beyond the average man-in-the-street.
“In short compass, five relatively young Guyanese men met at a Beer Garden on the East Bank of Demerara River and, in the course of their rendezvous, they consumed a ‘large’ and one half-bottle of Vodka,  with one of them drinking a Mackenson Stout as well.
“To a librating sociophile, at a maximum, each one of them would have consumed a little more than seven ounces in volume, commonly called ‘shots’ in more than five hours.
“Thereafter, 1 o’clock the following morning, invited  by the accused,  who was armed with a wooden bat, they went into  a nearby village, Diamond New Housing Scheme, in search of two girls.
“On the outskirts of that village, the accused advised them to arm themselves with pieces of wood in the event they encountered any dogs on their way.  Two of them did, but the deceased, who was called Troy, did not.
“The dam along which they walked was unpaved, and it would appear the deceased  and the main witness, one Esau, were in the lead, followed by the accused and two others,  ‘Cheezey’ and ‘Bulbar’.  On their  approach to a building which  appeared to have been identified  by the accused  as the  location  they would meet with the girls, the deceased and he had an exchange of words  followed by the infliction of the fatal injuries  to the former at about 3am.
“This episode is captured in the Caution Statement, given to the Police within less than 12 hours of the incident, to which no objection was offered by Defence Counsel before the jury.
“The episode reads: ‘…When  we reached de corner, we stop and de  boy what dead start for talkup where we are going and he lashed me with a bottle and I tek  de bat and I put  two lash on he at he head.  He run and fell down.’
“His statement  from the dock at the close of the Case  for the Prosecution corroborates this version, save for minor emendations which, though they may have resulted in a diminished  exculpatory effect, did not neutralize the admission contained therein.
“I set out the whole statement for the avoidance of any suggestion of conjecture, or inappropriate interpretation:
‘Whilst walking going in Diamond New Scheme, we walking and deh gaffing all the time.  Troy tell me I is a mad man; me ain’t  know  which part  I am going.   He start to argue with me. He lash me with a bottle and burst my head.   He go to lash me a second time, and I also  lash him back.  That’s all.’”
According to the judgment, “A Medical Doctor testified  for the defence,  and verified  that the appellant had a  ‘swelling to left temporal region’ when  he examined him within 14 hours  of the  altercation in question.
“Before concluding this summary of the events,  it is necessary  to indicate  that the main witness, Esau, testified that after the deceased was given  the first lash on his head , he fell down,  and the appellant administered  five to six more lashes in the region of his head .
“ A Pathologist  also testified  that there were several injuries  consistent with Esau’s testimony ,  some of which could have resulted  in his death.  It was therefore hardly surprising that the jury reached the verdict that they did.
“But was the law relevant to their deliberations  properly and adequately explained to them by  the Trial Judge and secondly did he give  them the amplitude of or  the requisite assistance  on the factual issues  by an appropriate  evaluation in resolving those issues  that arose  during  the trial so that the appellant  could be said  to have had a fair trial?
Some 32 years ago  some legal wit was  recorded  as saying :  “When a judge begins to sum up  at the end  of a case,  it is  for me as if  someone twirled  a  roulette and  we look anxiously  to see if  the ball will fall in red  or black.”
“Before embarking  on an analysis of  the law relating to the questions posed, it may be appropriate  to treat  with a preliminary  though  fundamental submission made  by Senior  Counsel for the appellant.  The issue was raised before the  learned  trial judge  upon  the arraignment   of  the appellant  before  the jury  was empanelled,  and again  upon  the conclusion of the addresses  by  counsel  who appeared at the  trial  after the case for the defence  was closed, But it Was  the contention  of Senior Counsel  that no formal ruling was recorded  by the learned  trial judge .
“However,  it was manifest  and  inexorable  from  the  process adopted that the  Trial Judge was not in  the least inclined  to quash  the indictment  as preferred by  the DPP since  the Records reflected  these terse words:  ‘Application considered but not granted,’
After delving into the law  and facts  and citing a number of related decisions  Justice  Ramson  concluded the judgment  of the Court with the words – “We  found it difficult, if not impossible ,to infer from  the evidence,  taking  the most favourable  view of the defences,  that the appellant’s life  was  seriously endangered as to justify or excuse  the use  of a wooden bat to inflict the fatal blows  to the head  of the deceased .
“However, we were concerned that the  passage  set out earlier  and hereunder , left unexplained and without  the clearest  of direction  to the contrary by  the learned  trial judge, may have left  the jury  in a state of confusion  and perhaps, uncertainty,  and  thereby  may have deprived  him of the benefit of a verdict  of manslaughter.   The indefensible direction is now set out:
“The provocation depends on the fact that it may cause  in a  reasonable man a sudden and  temporary loss of self-control and  the intention to kill or cause grievous bodily harm is absent”.
“This may have resulted  in a miscarriage of justice  , and  would  be in consistent  with Lord Buckmaster’s concept  of justice  embraced at  the commencement   of this judgment. As  the High Priest  assigned to grant relief ,this Court would be amiss in its  responsibility if this  cardinal directional  deficiency was given our  approbation.
“In these circumstances and, applying  LEE CHUN-CHUN –v. R (963) 1ALL E.R. 73, in part, the conviction and sentence for murder are hereby set aside and a verdict  of manslaughter is hereby substituted.
“The appellant is sentenced to 12 years imprisonment.”
The appeal was allowed in part.  Mr  B C.  De Santos, S,C,  with Mr. Hukumchand for  the Appellant,  Ms.  S. Ali-Hack -,D.P.P.  with  Ms.  Jo  Ann Barlow , Deputy D.P.P. for the State.