THE COURT of Appeal, at the invitation of the Director of Public Prosecutions (DPP), reviewed the decisions of certain murder cases and found that the trial judges in the cases of Alvin Mitchell (1984) and Cecil Levine (1987) had usurped the function of the jury by freeing the accused on no-case submission, rather than letting it decide the fate of the accused.

Dissatisfied with the results of the cases, the then DPP, in accordance with the law, referred the matters to the Appellate Court for review.

The objective was to get that Court to go through the records of the proceedings to ascertain whether the jury’s functions were in fact usurped, and if so, to make the necessary pronouncements that would serve as a guide to judges so that the same error will not be repeated.

Chancellor Keith Massiah, and Justices of Appeal Rudolph Harper and Aubrey Bishop made certain pronouncements. It was noted, too, that the submission of ‘no case’ to answers raised by the defence, involved finding of fact, which was the jury’s domain.

In Levine’s case, it was disclosed that following the death of the deceased, the accused voluntarily surrendered himself to the police. Levine said in a statement that the deceased had assaulted him; that he had pushed the deceased away and he had fallen.

The statement did not refer to the manner of the deceased’s death, but the accused told the police sergeant that the deceased had sustained injuries when he fell.

At Levine’s trial, his counsel raised the issue of self-defence and submitted that there was no case to answer. That plea included a proposition that even if it could be inferred from the circumstances that the accused had stabbed the deceased, the prosecution had not negated self-defence nor accident.

The trial judge acceded to the defence’s plea and dismissed the proceedings. The DPP referred the judge’s decision to the Court of Appeal.

The Court held that the trial judge ought not to have allowed the submission of “no case to answer,” as the defence had raised the issues of self-defence and accident. Also, the prosecution had adduced sufficient and relevant evidence to support the charge, and therefore the jury should, accordingly, have been left to determine whether the interference emanating from the prosecution evidence provided a natural explanation of the guilty act of the accused, which was destructive of other possible inferences or hypotheses.

The case in relation to Levine was in 1987, while that of Alvin Mitchell happened in 1984.

In his reference, Chancellor Massiah said:

“I confess to disquietude over the fact that the judicial approach to be taken for the determination of submission of ‘no case to answer’ still appears to be misunderstood. This question was addressed and definitively settled by the Court three years ago in the State versus Alvin Mitchell (1984) 39 WIR (West Indian Report) 185, although the old Court of Crown Cases Reserved had charted the proper juristic course nearly a century ago in R v Hookoomchand and Sagur [1897] LRBG (Law Report British Guiana) 12 on a case stated by Sheriff J.”

In the instant matter, he said, “the trial judge did not give attention to the principles enunciated in those Guyanese cases and others of a kindred nature, nor was regard paid to their English counterparts which culminate with R v Galbraith [198] 2 All ER (Al England Report) 1060.”

This, he said, resulted in the trial judge falling into fundamental error, and seeking to determine issues of fact, which clearly fell within the realm of the jury. Noting that “what eventuated was a manifest miscarriage of justice in a situation where the evidence for the prosecution was crystalline, comprehensive, and compulsively cogent,” the Chancellor said that having had the advantage of reading, in advance, the opinion prepared by Justice Bishop and wholeheartedly agreeing with his conclusions, he felt that the ‘no case’ submission ought to have been rejected.

In the aforementioned opinion, Justice Bishop had said:

“Three years ago, a question similar to the one raised now and also requiring an examination of circumstantial evidence, was considered by the Court (Massiah C. Fung-a-Fatt and Vieira JJA) in The State v Alvin Mitchell (1984) 39 WIR 185, by virtue of Section 32A of the Court of Appeal Act.”

Continuing his judgment, Justice Bishop said: “The response given then is appropriate in the instant discussion, and it is to be regretted that the wise words of Chancellor Massiah, who gave the leading judgment of the court, were not considered at the trial of Cecil Levine to guide the arguments and influence the trial judge’s ruling. As in Mitchell’s case, so here, the ‘no case’ submission of defence counsel, should not have been upheld.”

At Mitchell’s trial, the evidence was that the accused, the driver of a Land-rover, professed (at 3.oo a.m.) to be in a desperate hurry to reach his destination. However, subsequent events established the antithesis of that and demanded of him an explanation to the jury for the death of 30-year-old Nastawantee Persaud, whose semi-nude, dead body was found some hours later in a clump of bushes. The state she was in suggested that the woman had been brutally beaten and raped. The accused was the last person in whose company the woman had been seen alive.

Evidence led revealed that he had promised to get her home earlier than her two female companions, with whom she had been walking. The three women, it transpired, were night-club waitresses and had at first all rejected the accused’s offer of a lift home. Eventually, the deceased reluctantly joined the vehicle in the sincere expectation of swift conveyance to her home .

Her colleagues, on foot, reached home ahead of her for the simple reason that the accused drove in a direction away from her residence, as soon as he had surreptitiously sent the other passenger (a male) on a false errand into another nightclub.

Forty-five minutes later, the accused returned without the deceased, said nothing about her, but announced to his merry colleagues that they were to drive back forthwith to the village (12 miles away) from which he had earlier taken them that night. That they did. But within a few hours, the accused left camp for Georgetown some 85 miles away, where he was arrested.

After he had been in custody for the better part of three days, Mitchell claimed (for the first time) that the deceased had fallen out of his vehicle and met her death. There was no suggestion at the time that police conduct towards him had been improper.

Significantly, he had not given that account to any of his colleagues, not even to de Florimonte, the person to whom he had spoken when he was setting out for Georgetown, What is more, his colleagues denied his further claim that he had shown them the deceased’s body on the roadway during their return journey to the village.

In spite of such an impressive array of facts, the trial judge held that there was no case for the accused to answer. Our Court of Appeal was appalled at the ruling and saw fit to review a wide range of authorities, starting with R v Hookoomchand and Sagur, and ending with R v Galbraith.

Justice Bishop said that the trial judge ought to have sent the case to the jury where, in his opinion, there is sufficient evidence upon which a reasonable jury, if properly directed, might convict.

But unlike the Mitchell case, he stressed that the trial judge ought, on the other hand, to have withdraw the case if the evidence was so unsatisfactory or unsound (established through Cross-examination or otherwise) that no reasonable jury could convict on it, or if the evidence, even if all was believed, was so weak, tenuous or insufficient, that it cannot yield a lawful conviction.