IN 1981, Ashraf Haniff was tried for, and convicted of, the offence of manslaughter; and on appeal, one of his grounds was that the trial judge had omitted to leave with the jury for their consideration the issue of self-defence, and to give directions thereon. Evidence was adduced, as part of the case for the prosecution, from a statement made by the appellant to the police: That the appellant was attacked in his yard by the deceased with a long paling stave, and beaten with it; and as a result his hand was broken and his head burst.

Counsel for the State agreed that the judge ought to have left with the jury the issue of self-defence raised on the evidence, and to have given directions thereon.

The Court of Appeal of Guyana, constituted by Justices of Appeal R.H. Luckhoo and Charles Fung-A-Fat, and Justice George Pompey (additional judge of the Court of Appeal), decided to allow the appeal, and invited submissions on whether or not the case should be sent back for a new trial. The judgement of the court was confined to that question alone.

Finally, the Court of Appeal held that the interests of justice required that a new trial be ordered, having regard in particular to the strength of the evidence adduced against the appellant, the seriousness of the offence, the prevalence of the offence, and the fact that the lapse of time between the date of the incident and a new trial would not be so long as to affect the quality of the evidence, or to be prejudicial to the appellant.

That court, in its judgement, made reference to five cases.

Mr. Peter Britton, S.C. appeared for the appellant, while Mr. Carlton
Weithers, Assistant Director of Public Prosecutions, represented the State.

Justice of Appeal R.H. Luckhoo, who delivered the judgement of the court, had said the appellant Ashraf Haniff was convicted of the offence of manslaughter, the particulars of which read that he and John Simeon, on 25th October 1978, unlawfully killed the deceased, Sadeek Mohamed.

The jury found Simeon not guilty. The case for the prosecution was that the appellant and Simeon acted together for the unlawful purpose of causing injuries to the deceased, which resulted in his death.

The witnesses called in proof of the incident were Hardai, Mohamed, Fizul Amin (the wife and son of the deceased respectively) and Carlton Daniels, on whom the prosecution strongly relied as an independent witness. The relevant portions of the evidence of Daniels, for the purposes of the appeal, were that there was an incident which took place between 7.30 pm and 8.00 pm involving the deceased, a dark-complexioned East Indian man and a fair- complexioned East Indian man.

It was not in dispute that Simeon was dark and the appellant fair in complexion.

Daniels’s narrative of the incident was put in this way:
“About 15 minutes later, I saw an East Indian man of fair complexion in the yard east of Hardai Mohamed’s yard. He had a bottle in his hand, which he struck on the ground and the bottle broke. The man then ran out of the yard and went towards the southern fence of Hardai Mohamed.  He went up to the gate of Hardai Mohamed and stopped.

At that time, [the deceased] was standing by his gateway. He had a stick in his hand. The stick was about five feet long. As the fair-complexioned man was approaching [the deceased], [the deceased] ran out of the yard with the stick, after which the fair-complexioned East Indian man ran back into the yard east of Hardai Mohamed.

“After this, the deceased went back in his yard. This was around 7.30 pm. Later that night, about 8 pm, I saw a dark-skinned East Indian man of medium build, about five feet, four inches tall. He was walking from east to west in the open space near to the deceased’s house.
“He was walking towards the deceased’s home. I was still standing on the eastern side of the compound. The dark-skinned man had a stick in his hand. He was to the north of me. He walked and went and stood in front of the gate of the deceased, and the dark-skinned East Indian man started to curse when he got in front of the gate of the deceased.

“About two minutes later, I saw the fair-skinned East Indian man whom I had earlier seen leaving the yard east of the deceased. He had a cutlass. He walked up to the dark-skinned East Indian man who was standing by the gate of the deceased. At this point, the deceased was standing in the yard. The deceased and the two men who were standing by his gate (deceased) started to curse each other.

“Whilst the cursing was going on, the deceased left his yard with a stick in his hand. After the deceased came out of his yard, the deceased and the fair-complexioned East Indian man started to fight in front of the deceased’s gate. They fought until they got in front of the house which is west of the deceased’s house. Whilst they were fighting in front of that house, the dark-skinned East Indian man went up to the deceased and struck him in the region of his neck with the stick. After that, the deceased fell on the ground.

“Before the dark-skinned man struck the deceased, he was merely standing around with the stick in his hand. After the deceased fell, the fair-complexion man who had the cutlass started to chop the deceased, who was lying on the ground. The deceased was chopped about three times by the fair-complexioned East Indian man.
“When I said that the fair-skinned man and the deceased were fighting, I meant that the fair-skinned [man] was firing chops with the cutlass, and the deceased was firing lashes with the stick on the fair-skinned man.

“Whilst the fight was going on, the fair-skinned man was retreating and the deceased was advancing towards the fair-skinned man. At that stage, the men were about two feet/three feet from each other.

“The area where the fight was taking place was dark. This is the reason why I am unable to say whether the deceased and the fair-skinned man struck each other whilst they were fighting. At the time when the dark-skinned man struck the deceased, the fair-skinned man was retreating and the deceased was advancing towards the fair-skinned man and he was firing lashes at the fair-skinned man with a sick.”

After noting the witness Daniels’s testimony, Justice Luckhoo said, “Incidentally, it is interesting to note that, on the evidence of Daniels, the judge said that a certain aspect of law had arisen, and he felt it necessary to issue directions to the jury on the question of Simeon going “to the rescue of the appellant” when he was being attacked by the deceased; and in so doing, he used reasonable force in his attempt to rescue the (appellant).

Justice of Appeal Luckhoo added, “In such circumstances, Simeon could not be found guilty. There was, strangely, an absence of a similar direction on self-defence in relation to the appellant.”

However, the Court of Criminal Appeal allowed the appeal, setting aside the conviction and sentence, at the same time holding the view that, on proper directions, a reasonable jury might still properly convict.

“For the reasons given above, we would allow the appeal, set aside the conviction, and order a new trial.”