IN 1984 , the Guyana Court of Appeal found that a High Court judge usurped the functions of the jury in a murder trial when, instead of sending the matter to them, he found murder accused Alvin Mitchell not guilty of the murder of 32-year old waitress Nastawantee Persaud on defence no-case submissions.
He then directed the jury to return a formal verdict of not guilty in favour of the accused, who he subsequently discharged.
The then Director of Public Prosecutions, believing that the circumstances of the case required the judge to send the case to the jury for a verdict, utilized the DPP’s power under the law to request the Appellate Court to review the matter.
Consequently, the Guyana Court of Appeal, constituted by Chancellor Keith Massiah and Justices of Appeal Mr. Charles Fung-A-Fat and Mr. Frank Vieira who carried out the review, was critical of the judge’s action, as being irregular
It was pointed out by the appellate court that where the defendant in a criminal proceedings submits a plea of no-case to answer at (or before) the end of the prosecution case the trial judge ought to send the case to the jury if, in his opinion, there is sufficient evidence on which a reasonable jury (properly directed) might (in the judge’s view ) convict , if, however, the evidence is so unsatisfactory, or unsound that no reasonable jury could convict on it, or if the evidence, (even if all of it is believed ) is so weak, tenuous or insufficient that it cannot yield a lawful conviction, the trial judge should withdraw the case and direct the acquittal of the defendant.
Chancellor Massiah noted that the evidence in the court supported the view that the jury should have been asked to decide the fate of the accused referred to 35 cases in support of the Appellate Court’s judgment including that of R.V. Hookoomchand and Sagur (1897) LRBG 12 .
At the review, Assistant Director of Public Prosecutions Mr. Ian Chang, S.C. with Mr. Albert Baldeo, represented the DPP while Mr. David Wray appeared for Mitchell.
Under the heading “Reference by Director of Public Prosecutions” it was said that Alvin Mitchell was indicted with murder. At the close of the prosecution’s case, he submitted that there was no case to answer. The trial judge upheld the submission and directed the jury to return a verdict of “Not Guilty.”
The Director of Public Prosecutions of Guyana referred the following question to the Court of Appeal: “Was the trial judge correct in law on the evidence led by the prosecution in this case in ruling that a case had not been established requiring the accused person to lead a defence?”
Setting out the facts in his judgment, Chancellor Massiah said: “At about 8:30 a. m on Sunday, 7th February 1982, a party of policemen attached to the Bartica Police Station made a macabre discovery at 2 Miles, Bartica-Potaro-Road.
There, in a clump of bushes about ten feet from the road where they discovered the dead body of 33-year-old Nastawantee Persaud. The body, clothed in a blouse that was unbuttoned, face upwards, was exposed from the waist down for the skirt was raised and the under garment was missing. The legs were spread apart, and there oozed from the vagina what appeared to be blood. There was grass in the pubic area. Several injuries were seen.
Shortly before they made the discovery, the police party had come across a number of articles which were identified as the property of the deceased by Lilapattie Romohan, the niece of the deceased .
Among the articles found was a shoulder-bag which was lying on the road . On the bag were what appeared to be drops of blood. About five feet away, in a clump of bushes, a pair of yellow panties was found. Attached to it was a sanitary napkin. What appeared to be blood was seen both on the panties and the napkin. Nearby was a girdle.
The police party, which Lilapattie Romohan accompanied to the Bartica-Potaro road had been galvanised into action when Romohan reported to the police station on the morning of February 7, 1982 that her aunt was missing from home .
At about 3 a.m., Romohan , one Waveney Gill and the deceased , together left the Nest Discotheque in Fifth Avenue, Bartica , where they worked as waitresses.
Romohan and her companions had worked the night shift and were on their way to the deceased’s home in Fourth Avenue where they all lived.
On their way home, they met Alvin Mitchell who was driving a land rover. Three other men were in the vehicle. Mitchell was a regular patron of the Nest, and the night before he was seen there at a dance. Mitchell offered to take them home on the vehicle. Gill and Romohan declined the offer. After some apparent hesitation, the deceased accepted, declaring to her companions that she would reach home faster than they.
Her expectations never materialized , for when Gill and Romohan reached home on foot they discovered to their consternation that the house was securely locked and that the deceased had not arrived there.
Overcome by tiredness, they soon fell sleep. When Romohan awoke that morning at about 7 a.m. the deceased was still not there. Naturally, Romohan became alarmed. She then went to her uncle’s home and inquired about the deceased but there she learnt nothing.
She next went to the Bartica Police Station and reported the matter. It was then about 8 a.m. The police left soon after for 1 ½ Miles, for Bartica-Potaro road, on the strength of what one Benjamin had told them, and they found the articles already mentioned about; shortly afterwards they discovered the dead body of the deceased.
The cumulative circumstance led the police to conclude that the deceased had been murdered. Suspicion fell on Alvin Mitchell (the person last known to have been with her ) who by then had hastily fled to Georgetown. He was arrested there on 8th February, 1982 and taken to Bartica Police Station on 11th February where he was duly charged with murder.
Mitchell was subsequently indicted with murder and faced his trial at the criminal assizes in Georgetown in January, 1984. The evidence against him was almost wholly circumstantial. At the close of the prosecution’s case, counsel for Mitchell submitted that there was no case to answer. The prosecution vigorously contended that there was. The trial judge upheld the submissions and formally directed the jury to return a verdict of “Not Guilty” and Mitchell was accordingly discharged.
The Appellate Court, in reviewing the case as requested by the DPP, concluded that “When regard is paid to all those events and evidentiary circumstances it seems to me clear beyond peradventure that there is sufficient evidence on which a reasonable jury properly directed might have convicted Mitchell.”
According to Chancellor Massiah, “ That satisfies me the test in Hookkoomchand and all the other kindred cases which explain the relevant Common law position, including of course, the local cases that gave benediction to Hookoomchand.
“Whether the jury would have convicted Mitchell is not a consideration that properly comes within my purview. The evidence is sufficient on which they might have done so and that is enough for present purposes.”