IN October 1993, Jainarine Prashad allegedly stabbed Ramcharran, called ‘Budda’ and ‘Gilbert’, to death at a dark spot at a restaurant at Goed Fortuin, West Bank Demerara.

At the jury trial, he was found not guilty of murder, but guilty of the lesser count of manslaughter, and was sentenced to eight (8) years imprisonment by the trial judge.
The accused, represented by Mr. Khemraj Ramjattan, dissatisfied with the results, appealed against the conviction and sentence. He was set free by the Court of Appeal, headed by Chancellor Cecil Kennard.
The freedom was based on the ground that through the non direction of the trial judge, the jury, in arriving at their verdict, might have accepted the utterances of the deceased, “Gergam son Jai juck me,” to a witness as evidence of its truth.
In the circumstances, the appeal was allowed, and the conviction and sentence were set aside by the Appellate Court.
Chancellor Kennard, in delivering the judgment, said: “The Appellant was indicted for the offence of murder in respect of Ramcharran, c/d Budda and Gilbert, allegedly committed on the 15th day of October 1993 at Goed Fortuin, West Bank Demerara.
“However, the jury convicted him of the lesser offence of manslaughter, for which he was sentenced to a term of eight (8) years imprisonment.
“He has appealed that conviction on a number of grounds, but the one which I think would determine this appeal relates to the admissibility of certain evidence by the trial judge as part of the res gestae.
“However, before dealing with the grounds of appeal, I would refer very briefly to the facts of the case.
“The evidence led at the trial reveals that both deceased and the appellant had gone to the Liquor Restaurant of one Bissoondial Rajkumar at Lot 19, Goed Fortuin, West Bank Demerara at about 9pm on the 15th October, 1993. However, they were not in the same company, but were at separate tables. They were both seen drinking alcohol, but the evidence seems to suggest that the deceased had been drinking beers, whereas the Appellant had been drinking both beers and rum.
“There was an altercation between the two men, and the Appellant got up from the table at which he had been drinking and went up to the deceased and cuffed him on the chest, after which the deceased ran out of the premises holding his chest and being pursued by the Appellant.
“About two minutes later, the Appellant returned to the Liquor Restaurant and Bissoondial Rajkumar asked him to leave, which he did. This restaurant is known as ‘Harold’s’.
“The next we heard of the deceased came from the evidence of Gowkarran Inderdat, who is known as ‘Butcher’ and ‘Master’, who testified that about 9:45pm that very evening, he had been in one Randolph’s Liquor Restaurant at Goed Fortuin, which was obliquely opposite to that of Harold’s and which was about 200 yards away, when he saw the deceased staggering and entering the liquor restaurant with his right hand holding the left side of his chest and holding on to a pool table. The deceased then fell to the ground. Inderdat held the deceased, and observed that he was gasping for breath and bleeding from the left side of his chest.
“According to Inderdat, without any prompting from him, the deceased said: ‘’Master, Gergaram son, Jai, juk me.’ The deceased was later taken to the West Demerara Regional Hospital, where he was pronounced dead later the said evening.
“Three days later, a post-mortem examination was performed on the body of the deceased by Dr. Leslie Mootoo, who found that the deceased had a stab wound on the left side of his chest, which could have been caused by a long and narrow instrument.
“Cause of death, in his opinion, was haemorrhage and shock due to the stab wound in the pericardium and the heart. He also opined that the most the deceased could have travelled after receiving the injury was 25-35 yards; and further, that the deceased would have survived without medical attention for a period of 20-30 minutes.
“The evidence on which the prosecution relied to secure a conviction was that of Bissoondial Rajkumar, as to what took place at the Liquor Restaurant, and that of Gowkarran Inderdat as to what the deceased is alleged to have said to him as part of the res gestae.
“The trial judge had, quite erroneously in her summation, referred to certain bits of circumstantial evidence, which the jury could have used in order to return a verdict of guilty.
“These portions of evidence could not have been properly used by the jury in determining whether the accused was guilty, as in no way did they link the accused with the commission of the crime, whether murder or manslaughter.
“It would, therefore, follow that the only way the jury could properly have found the accused guilty, is if they had accepted what the deceased is alleged to have told Inderdat as evidence of its truth.
“It therefore follows that the trial judge had to be very careful before admitting evidence of the utterance of the deceased. The trial judge quite properly conducted a voir dire, and concluded that the evidence was admissible.
“The question therefore arises whether the ruling of the trial judge can be upheld. Mr Ramjattan, in his submission before us, had conceded that the direction given by the trial judge to the jury on the issue were adequate, but had contended that the approach of the trial judge to the matter was quite erroneous, as she had failed to consider certain aspects of the evidence, which he referred to as ‘special features’, before admitting the evidence. These were:

(1) Deceased had been drinking at the time of the incident;
(2) The incident had taken place at a dark spot; and
(3) There was malice on the part of the deceased, as he had been cuffed by the Appellant in Harold’s Liquor Restaurant.”

According to the Chancellor, “to sum up therefore, I would hold that the trial judge had erred in admitting the res gestae evidence, but assuming I am wrong, I would still allow the appeal, because the failure of the trial judge to direct the jury to approach the impugned evidence with extreme caution because what the deceased is alleged to have said was not said under oath; and therefore, the deceased was not subject to cross-examination.
“Mr. Ian Chang, for the State, did refer to R. v.Carnell (1995) Criminal LR 944, where it was held that jurors are not fools, and must have realized that the deceased did not testify and could therefore, not be cross-examined.
“However, we are dealing with a Guyanese jury, and unless they were told specifically to approach the evidence with extreme caution, they could very well have been under the impression that once the evidence was admitted by the trial judge, they were automatically bound to act on (see the State v. Martin (supra) it.
“This direction was particularly necessary, because, without this evidence, there could be no proper basis for convicting the Appellant.
“In the circumstances, the appeal is allowed, and the conviction and sentence are set aside.”