New trial ordered for Frank Sookram

BECAUSE a trial judge had misunderstood the defence in a case of wounding with intent, in 1971, he misdirected the jury, who as a consequence, found the accused Frank Sookram, guilty.

Sookram, who had led a defence of self-defence, appealed.

After hearing the appeal, the Guyana Court of Appeal, by a majority judgment, set aside the conviction and sentence, but ordered a new trial in the interest of justice.

The appellant was charged with wounding with intent. The substance of his defence was, that he was attacked with a knife by the virtual complainant (VC) and that he barred the blows which were being aimed at him with a cutlass, as he was unable to run away.

The trial judge in summing up to the jury, dealt with the defence on two bases, viz, firstly that the appellant was not admitting to inflicting the wounds, and, secondly, that he wounded, but in self-defence. In dealing with self-defence, the judge left it to the jury to find whether that defence arose.

The Guyana Court of Appeal, constituted by Chancellor E. V. Luckhoo and Justices of Appeal Guya Persaud and Victor Crane, (with Justice Persaud dissenting) held: (i) that the judge had misunderstood the defence, and that the only defence raised was self-defence;

(ii) that whether there is sufficient evidence to support an issue of self-defence is within the province of the judge to decide, and not for the jury; but it is for the jury to decide whether the accused acted in self-defence.

Twenty-two (22) cases were referred to by the Court of Appeal during the hearing.

At the hearing, Mr. C. Lloyd Luckhoo, S. C., appeared for the appellant while Mr. W. G. Persaud, appeared for the State.

Chancellor Luckhoo delivered the main judgment.
He said that the appellant stood his trial for the felony of unlawfully and maliciously wounding Chatarpaul Panchu with intent to cause him grievous bodily harm or to maim, disfigure, or disable him on November 10, 1970, for which he was liable to penal servitude for life, and to whipping or flogging ( section 57 (a) of Chapter 10 [G.] ) There was no count for the misdemeanour of unlawfully and maliciously wounding, for which on conviction the punishment was no greater than a sentence of five years (s. 50 of Cap. [G.D]
. But according to accepted practice, where the facts so permit, a jury is allowed to consider the alternative of convicting for the lesser offence of unlawful wounding, on the basis that:

Every count shall be deemed divisible; and if the commission of the offence charged as is described in the enactment creating the offence, or as charged in the count, includes the commission of any other offence, the accused person may be convicted of any offence so included and which is proved, although the whole offence charged is not proved, or he may be convicted of an attempt to any offence so included…” (s.1o2 Cap. 11 [G])

The Chancellor went on to explain, that the appellant and the injured man Panchu were not on speaking terms because of some family dispute about lands. They came into conflict with each other on the day in question when apparently no one was around, as a result of which Panchu suffered the following injuries:

(i) A lacerated wound about two inches long on the front portion of the scalp.
(ii) A lacerated wound two inches long over the right elbow region.
(iii) A lacerated wound over the right palm about three inches long with nearly amputated third, fourth and fifth right fingers.
(iv) A lacerated wound about two inches long over the right axillary region, left arm and left forearm.

These injuries could have caused disability and disfigurement and were thought by the medical officer to be dangerous to life because, of the severe bleeding at the time.

For the prosecution, the injured man Panchu gave this account:
“I saw the accused walking coming towards me; he was about five rods from me. When we were about four feet apart he brought his hand forward. He had a cutlass and he said he would chop off my neck. He had the cutlass in his right hand. He made a chop at me and I raised my left hand which had a hand bag. The hand-bag chopped off and fell to the ground. He made a second chop and I received a blow on my left elbow region. He made a third chop and I received a wound on my left upper arm. I then rushed into him and the two of us fell into the trench. I fell inside the trench and I braced a little on the road. The accused then chopped me on my head and I became unconscious.

“When I regained consciousness, the accused brother spoke to me. I then walked out of the trench and I went and sat under a sapodilla tree. When I regained consciousness I found I had other wounds including one at the back of my right elbow, right hand, upper left shoulder and one under my left arm. I received two wounds before I fell inside the trench.”

Continuing his judgment, the Chancellor explained that Panchu denied such suggestions as that he was the aggressor and that he was armed with an Eddie Polo knife with which he had attacked the appellant. At the close of the case for the prosecution, therefore, a case of wounding with intent was made out and the trial judge’s direction on the effect of Panchu’s evidence could not be seriously questioned.

The Chancellor said that he was therefore constrained to the firm view that, the trial judge misdirected the jury when he left it for them to decide as a preliminary question whether self-defence arose as an issue.

According to him, there should have been a ruling: (i) that self-defence was an issue which was fit for consideration; (ii) that it was for the jury to decide from the evidence on the whole case (and not from the defence only)–(a) whether the accused inflicted the injuries, and, if so, (b) whether it was in self-defence.

Chancellor Luckhoo added, “In conclusion, I would say this: that the case for the defence was not properly put in matters which were essential to a fair assessment of the issues. In view of the serious omissions and express misdirection, it would be impossible to say whether a reasonable jury properly directed would have inevitably come to the same conclusion, as that would depend so much on how they weighed the evidence, etc. The summing-up was of such a character as to deprive the appellant of the substance of fair trial for reasons already. An opportunity should be given to have the case properly put to the jury.

“I would, therefore, propose that the conviction and sentence be set aside, and that a new trial be ordered in order to allow the defence to be put in its proper perspective, and to give the jury an opportunity of assessing what arises naturally therefrom.