Appellate Court ordered new trial in the interest of justice

IN 1981, the Guyana Court of Appeal presided over by Chancellor Victor Crane, and Justices Kenneth George and J. A. Luckhoo, nullified a High Court judgment in the interest of justice and ordered a new trial.This happened in the case of the State verses Chandica Persaud Sanichar, where the Appellant and two other persons were charged with the offence of wounding with intent to cause grievous bodily harm, and raised the two defences of self-defence and accident.

The trial judge failed to direct the jury that it was for the State to negative the defences.
The effect was that the appellant was sentenced to five years imprisonment and a flogging of ten strokes. He appealed the conviction.
The Court of Appeal Held: Such a defect in a case where the defence of self defence and accident arose was fatal.
Further, that it would be in the best interest of justice to order a new trial and the appeal was allowed.
R. H. McKay, S.C., R. Ramlall with him, represented the Appellant, and C. W. Weithers, Assistant Director of Public Prosecutions, represented the State.
Luckhoo, J. A. delivered the judgment of the Court. The Appellant, with two other persons who were acquitted, was convicted on 19th June, 1979, at the Berbice Criminal Sessions of the offence of wounding Baliram Jaimangal on 14th, 1977 , with intent to cause him grievous bodily harm or to maim, disfigure or disable him, contrary to section 57 (a) of the Criminal Law (Offences) Act, Chapter 8:01. He was sentenced to five years’ imprisonment and flogging of (10) strokes. From this conviction and sentence he has appealed.
The case for the State was simple and straightforward. Baliram Jaimangal gave evidence that on 14th of June, 1977, at 7.00 a.m. there was an exchange of words between him and Motilall Sanichar (the No. 2 accused) at Ankervillel, Port Mourant, Berbice, over the throwing of rubbish opposite Baliram Jaimangal’s mother’s yard.
This incident ended there. Baliram Jaimangal then went about his work, grazing his cows. At about 11.00 a.m. to 12 noon, he was returning home for breakfast when the Appellant, who also lived nearby, questioned him about the earlier incident.
The Appellant threatened to kill him, cuffed him in his face and pushed him in a drain. He got up and went home. The Appellant then stood by his gate and cursed Baliram Jaimangal , who replied in like manner.
At this stage, the Appellant threatened him again and a minute or two later the Appellant and the two other accused came in front of the gate. The Appellant had a lance in his hand. The other two accused carried a cutlass and a stick respectively.
Baliram Jaimangal said that he went to his gate and spoke to the Appellant and the Appellant immediately rushed him with the lance and bored him in his belly. The lance stuck there.
Both men held on to the lance and the Appellant pulled Baliram Jaimangal two to three rods on the street.
Eventually the lance was pulled out by the Appellant. The other accused at this stage struck him with the cutlass and the stick.
Under cross-examination, Baliram Jaimangal denied that he had armed himself with an axe and a lance,or that he had gone opposite the Appellant’s house.
A neighbour, Bissondai Karran, corroborated the injured person’s evidence.
She claimed to be on good terms with all the parties. Her vision was basically the same as Baliram Jaimangal’s. Under cross-examination, she likewise denied that Baliram Jaimangal came out with a lance.
In the leading case of R. v. Abraham, 1973, Edmund Davies, L.J. suggested that after giving clear, positive and unmistakable general directions as to onus and standard of proof, a judge should, in dealing with the issue of self defence, tell the jury something on the following lines:
“Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has a particularly important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self defence. A person who acts reasonably in his self defence commits no unlawful act.
“By his plea of self defence, the accused is raising in a special form, the plea of not guilty . Since it is for the Crown to show that the general plea of not guilty is unacceptable, so the Crown must convince you beyond reasonable doubt that self-defence has no basis in the present case.”
The Privy Council in Dennis Reid v- R.[1979], set out the principles and guidelines to be considered in relation to a retrial.
“I would fully endorse those guidelines which were considered in Ashraf Haniff’s case, referred to above, with the full endorsement of the flexibility of approach to the enumeration of relevant factors.
On an application of the principles to the facts of this appeal, I am satisfied that the offence is serious and prevalent, the trial was and the retrial can be short, the issues are not complex, the case for the prosecution on the record was strong, and as no witnesses were called for the defence there can be no prejudice to the Appellant.
“Accordingly I would make the order which was made in Frank Sookram’s case, which was a similar case of wounding, that the conviction and sentence be set aside and a new trial ordered.”