Majority verdict a nullity in non-capital offence

IN 1995, the Guyana Court of Appeal ordered a retrial for appellant John Lawrence who was found not guilty of murder but guilty of the lesser count of manslaughter on a majority 10 to 2 verdict arrived in one hour & 25 minutes deliberation, instead of 2 hours as required by statute.

The Court allowed the appeal and the accused was ordered to face a retrial for manslaughter.
The facts of the case disclosed that the appellant was indicted for murder of a 10-year-old girl in August, 1995. There was no direct evidence linking the appellant to the death. The prosecution tendered a statement allegedly made voluntarily and freely by the appellant to the Police at a voir dire in which the appellant admitted holding the girl around her neck and leaving her when she no longer kicked.

The jury returned a unanimous verdict of not guilty of murder, but by a majorty of 11 to 1 found the Appellant guilty of the lesser offence of manslaughter.
On appeal, the question was whether the verdict of guilty of manslaughter was properly received by the judge in as much as the jury had not deliberated for the minimum period of two hours required by the Criminal Law (Procedure) Act Cap. 10:01.

That Court held: The jury was directed by the judge to consider both murder and manslaughter and they did so. They properly returned a verdict of not guilty of murder and the appellant could not be retried for that offence. In relation to the manslaughter verdict, the jury was entitled to find the appellant guilty of this lesser offence under s.102 of the Criminal Law (Procedure) Act. Cap. 10:01.

However, they had only deliberated for one` hour and 25 minutes instead of the minimum two hours required for a majority verdict. Therefore, the verdict was a nullity. In the circumstances, the appeal would be allowed and the conviction and sentence for manslaughter quashed.
Mr. Compton Richardson for the Appellant.
Miss Yonette Cummings for the State.

The Guyana Court of Appeal was constituted by Chancellor C. Kennard, Justice of Appeal Lennox Perrry and Justice of Appeal Guya Persaud.
Delivering the judgment of the Court Chancellor Kennard said: The appellant was indicted for the offence of murder allegedly committed between the 25th and 26th days of August, 1995. The allegation of the State was that he had murdered one Tonesha Henry, who was then 10 years old at Vergenoegen,East Bank, Essequibo. The State’s contention was that the deceased had died as a result of being forcibly sexually assaulted by the appellant.

There was no direct evidence linking the appellant with the death of the deceased but the prosecution had tendered at the trial a statement allegedly made by the appellant conducted a voir dire and ruled that it was freely and voluntarily made by the Appellant.
That statement read inter alia:

(…) Me run up to she and me scramble she around she neck and all two ah wee fell down on the ground but me still hold she neck. The next thing me know like she na get no power to fight then me loose she neck and she foot still kicking up. Me then feel up she patacake but when she foot nah kick up more me left and say boy me ah go home.”
Among the injuries found on the deceased by Dr. Leslie Mootoo, who had performed the post mortem examination on the body was a fracture of the left hyoid bone. There were also:

(1) Rupture of the hymen
(2) Rupture of tissues between anus & vagina;
(3) Contusion of anus and rectum;
(4) Rupture of pouch of Douglas (separation from abdomen).
Cause of death according to Dr. Mooto was:

(1) Asphxiation due to fracture of Hyoid Bone;
(2) Shock following – rupture of hymen, rupture of pouch of Douglas & rupture of tissues between the anus and vagina.

In this case the jury had properly returned a verdict of not guilty of murder so that the Appellant cannot be retried for that offence. [See Article 144 (5) of the Constitution which has words similar to Section 20 (8) of the Jamaica Constitution.
However, in relation to manslaughter the verdict of the jury was not a proper one and amounted to a nullity. Applying the ratio decidendi in Nasralla’s case it means that the appellant can properly be retried for the offence of manslaughter.

In the circumstances we are forced to allow the appeal and quash the conviction and sentence for manslaughter and we would order that the appellant be retried on an indictment for manslaughter.