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Chan v The State

Jurisdiction: Guyana
Judge: Perry, J.A., Persaud, J.A.
Judgment Date: 13 June 1997
Neutral Citation: GY 1997 CA 4
Reported In: GY 1997 CA 4
Docket Number: Criminal Appeal No. 2 of 1996
Court: Court of Appeal (Guyana)
Date: 13 June 1997

vLex Document Id: VLEX-793472881

Link: https://justis.vlex.com/vid/chan-v-the-state-793472881

Text

Court of Appeal

Churaman, J.A.; Perry, J.A.; Persaud, J.A.

Criminal Appeal No. 2 of 1996

Chan
and
The State

Appearances:

K. Ramjattan for the appellant.

I. Chang D.P.P. (ag) for the State.

Evidence - Additional evidence — Appeal against conviction and sentence for murder —
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The trial judge allowed additional evidence to be admitted which had not been led at the
preliminary inquiry — Whether there was good reason to admit the evidence — Counsel for
the appellant was offered adjournment on each occasion that evidence was admitted but
he declined — The evidence led was of significant nature and was foreshadowed by
previous witnesses — Reasons for admittance were fair, good and balanced — The
appellant was not prejudiced — Appeal dismissed.

Perry, J.A.

Port Kaituma hunter Lawrence Chan was sentenced to death for shooting and killing two
men in a robbery bid at a camp on the night of January 11, 1993.

The victims, Raphael Seecharran a businessman and his assistant Ramong, were what to
death, while relaxing in their camp.

Following their execution the accused Lawrence Chan, ordered his brother Johnny Chan
and his companion Rodrigues to help him place the two bodies in a corrial.

He then took the corrial ‘up river’ to a creek named ‘Parana’ where, the corrial with the
bodies was anchored in the deep creek.

The bones of the deceased were recovered ten months later, when police in the course of
investigation, came across a polythene rope tied to a small tree at the creek bank.

Feeling something heavy at the end of the rope, they lulled it to the surface and discovered
that it was a corrial which contained a 48-gallon drum of water and human bones including
two skulls.

The wristwatch Seecharran was wearing at the time of his death was also found in the boat
together with the clothing that the deceased were wearing at the time of their execution.

The police collected the bones, placed them into two small boxes and shipped them by
plane to Georgetown where the remains were examined by Forensic Pathologist Dr. Leslie
Mootoo who found pellet holes in the skull and bones, sufficient to confirm that death was
due to gun shot wounds.

Seecharran was said to have had $25,000.00 in his possession when he set out on the trip
that day.

At the hearing of the appeal, the judge's summing-up was not criticised by defence counsel

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Mr. Khemraj Ramjattan.

But Mr. Ramjattan sought to submit that the trial judge had erred in allowing additional
evidence from Joel Clementson and Johnny Chan (an accomplice) and Oral Stoby and
Lennox Thornhill to be admitted in evidence at the trial when there was no good reason
why such evidence was not let at the preliminary inquiry.

Mr. Ramjattan who was opposed to the testimony of Johnny Chan, had further contended
that the trial of the appellant was most unfair, in that:- (a) there was every indication from the
trial judge's conduct that he assumed the role of an advocate, rather than a referee, when
he constantly filled gaps for the prosecution's case with his constant and regular
questioning of witnesses.

On the other hand, the Director of Public Prosecutions, Mr. Ian Chang pointed out that the
State could not properly have called Johnny Chan as a witness at the preliminary inquiry
for the obvious reason that he was a co-accused then.

This court was also told by the D.P.P. that the trial judge, in exercising his discretion, had
taken into account all the factors, including those that affected the public.

The trial judge in defence of his ruling had said, “It is in the interest of the public that
criminals should be brought to justice and the more serious the crime the greater is the
need for justice to be done.”

Mr. Ian Chang further submitted that the additional evidence was relevant and admissible
and that the trial judge had quite correctly exercised his discretion to admit the evidence.

The facts of the case disclosed that Seecharran, a farmer and businessman (a trader)
accompanied by Ramong and John Knights, had left Port Kaituma for down river on
January 11, 1993.

Knights testified that when they were about a mile from Port Kaituma Landing, he observed
a boat following behind.

He said that they paddled faster and observed that the boat behind them had increased its
speed also.

Seecharran brought his boat to a standstill on the riverbank, with the result that the corrial
which was traveling behind drove past them with three shirtless passengers, including the
accused.

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According to Knights after it began to get dark, Seecharran and his party decided to stop at
an unused camp, for the night.

He said that they were at the said camp relaxing when the accused, his brother Johnny
Chan and a man named Rodrigues who had earlier passed in their corrial turned up about
6:45p.m. and requested to bunk for the night.

The accused who was armed with a gun explained that he was on a hunting mission for
bush hogs, and asked permission to remain in the camp.

They were accepted because it was an unused camp. Knights went on to say that about
10p.m. the accused got up, folded his sheet, placed it in his traveling bag and picked up his
gun.

“Accused then said, ‘Boys lets go and listen’. With that accused walked away”.

Witness said that Seecharran was still in him hammock, Ramong was on the floor of the
camp when he heard a loud bang as if a gun had gone off. The sound came from the
direction of the accused.

Knights said that after hearing the gun shot one of the boys … replied “This thing go off”.

Witness said that he looked in the direction of the deceased and noticed that the sheets that
they were covered with had several holes believed to be caused by gun shots. Seecharran
was groaning as if in pain.

This witness ran out of the camp. He said that he was running through the bushes when he
heard another gun shot.

He remained in the bushes on his belly until daylight before returning to the camp. All he
saw there was fresh blood on the floor of the camp.

Later that day, he made a report to the Mabaruma Police Station. Knights said that later that
day he accompanied the police to the accused's home at Port Kaituma. On seeing the
police approaching, accused jumped through a window and escaped.

They entered the house and found the red jersey that the accused had used to cover his
head while in the camp. They also found a sheet that resembled the sheet the accused had
used to cover himself while in the camp.

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Johnny Chan, the brother of the accused, along with Godfrey Rodrigues had been charged
with the murder, but was freed on a nolle prosequi. Rodrigues died in prison.

Johnny Chan was made a witness for the prosecution.

Three amended grounds of appeal were filed by the appellant. He, however, abandoned
ground 3 and argued the appeal on the following grounds:–

(a) That the learned trial judge erred in allowing additional evidence from Joel
Clementson, Johnny Chan, Oral Stoby and Lennox Thornhill, to be admitted in
evidence at the trial, there being no good reason why such evidence was not led at
the preliminary inquiry.

(b) That the trial of the appellant was most unfair in that there was every indication
from the trial judge's conduct that he assumed the role of an advocate rather than a
referee when he constantly filled in gaps for the prosecution's case with his constant
and regular questioning of the witnesses and this resulted in an unbalanced
approach of the case for the defence in his summing-up.

Let me state at the outset that upon a perusal of the record of appeal and the evidence led
at the trial and the questions asked by the learned trial judge I am of the view that this
ground of appeal has no merit. In my opinion what the learned judge was doing was in fact
asking questions for the benefit of the clear understanding by the jury of the evidence and
various issues raised from time to time. In the Nigerian Case of Akinfe v. The State (1989)
L.R.C. (Criminal), the issue of the judge descending into the arena was raised. This was
not a case of trial by jury, nevertheless it was hold that a trial judge was properly entitled to
ask questions to clarify answers to questions asked by the parties or to clarify a point which
had arisen and this is exactly what the learned trial judge did in the present appeal. To this
end I find that there was no unfairness to the appellant.

With respect to the other around dealing with the learned trial judge's allowing additional
evidence to be led, I have this to say: The witness Lennox Thornhill, had not given
evidence at the preliminary inquiry where it was sought to tender the certificate issued by
him as to his ballistic findings. The admission of such a certificate in evidence was not
permitted at the preliminary inquiry therefore the appellant would have reasonable
expected that at the trial appropriate steps would have been taken to have the witness
called. The appellant therefore, could not have been taken by surprise and a ruling to this
effect was made by the learned trial judge at page 96 of the record. The learned trial judge
concluded in his ruling that Thornhill's evidence would be no surprise to the defence. With
this I entirely agree.

With respect to the witness Joel Clementson, he gave evidence at the preliminary inquiry
and was called at the jury trial. An application was made by the State to lead additional
evidence by this witness relating to the period 21-11-93 to 23-11-93 which was not led at

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the preliminary inquiry. This evidence related to the search for the bodies of the deceased.
It was only on the 17th November 1993 that Clementson gave a statement in relation to this
aspect of the case. By that time Cpl. Stoby who was part of the investigating team was no
longer a member of the force and could not have been contacted by the police in time for
the preliminary inquiry. Counsel for the appellant Mr. Puran objected to this move. The
learned trial judge examined the situation and having looked at the evidence which the
State proposed to lead additionally and in view of the fact that Clementson had already
given evidence in relation to the search at the preliminary inquiry exercised his discretion
and allowed the additional evidence to be led. The learned trial judge after exercising his
discretion to allow the additional evidence to be led offered a further opportunity to the
defence to consider the additional evidence if they so desired. No such request was made
by the defence. It was on the 17th November 1995 almost one year after the conclusion of
the preliminary inquiry and almost two years after the search and finding of the bones and
watch that he made a written statement on those matters. On the 1st August 1995, the
indictment was filed, the D.P.P. having received the depositions on the 9th June 1995 and
so the indictment was about to be presented. Notice of intention to lead the additional
evidence was served on the defence on the 23rd day of November 1995. In view of this
situation, it is clear that the evidence was not available to the prosecution until the 17th
November 1995 and although Clementson was always available as a witness there was no
statement from him in the police file at the time of the preliminary inquiry on those related
aspects of the case in which it was sought to lead additional evidence. Clementson was not
an eye witness to the killing of the deceased or to the disposal of their bodies and I agree
with the learned D.P.P. when he submitted that one could not have reasonably expected
that he would have accompanied Cpl. Stoby on the search unless Stoby himself had
revealed this. Cpl. Stoby did not do so. He had left the force without giving a statement to
the police and only did so during the trial on the 28th of November 1995. Even though
Clementson made a further statement identifying the wrist watch at the post mortem he did
not mention his involvement in the search. In all the circumstances of Clementson's
participation in it, it is clear that the evidence of the finding of the bodies and the watch was
not available to the State at the time of the preliminary inquiry.

In the light of all of this I would not interfere with the discretion of the learned trial judge in
allowing additional evidence to be led at the jury trial.

It is true that the D.P.P. has a discretion under section 77(1) of the Criminal Law
(Procedure) Act, Chapter 10:01 as amended by section 16 of the Administration of Justice
Act, 1978 to remit the matter and to have the preliminary inquiry re-opened but it would
seem to me that he would have no such power in these circumstances having regard to the
fact that the indictment had already been filed in the High Court and its jurisdiction had
already been invoked. The appellant having been committed to stand trial at the High
Court, that court is now seized with the jurisdiction to hear the case on indictment. It seems
to me further that it would have been improper for the D.P.P. to have withdrawn the
indictment, that is to say that he does not wish to prosecute the appellant and then at the
same time continue to prosecute him in the Magistrate's Court at a fresh or re-open the
preliminary inquiry.

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With respect to the witness Johnny Chan, he having been charged with the appellant and
was therefore a co-accused, he was not legally available as a prosecution witness at the
preliminary inquiry. The explanation given by the State as to why Johnny Chan was not
called at the preliminary inquiry is clear and satisfactory. At the time of the jury trial,
however, he was not any longer indicted and in fact a nolle prosequi was entered in his
favour. That therefore, made him a competent witness for the prosecution. It was submitted
that the defence could not have been taken by surprise since this witness had given a
statement which was tendered as an exhibit at the preliminary inquiry. The learned trial
judge heard the arguments by counsel on both sides and at pages 36 - 37 of the record
allowed the additional evidence to be led by Chan, having held that his evidence was
relevant and admissible and therefore exercised his discretion having considered the case
of R v. Sang [1979] 2 All E.R. In doing so the learned trial judge considered the
seriousness of the offence - Vide R v. Jeune (1975) 61 C.A.R. at 79 and further the learned
trial judge considered that the evidence of Johnny Chan was not the only evidence against
the accused, but there was also the evidence of John Knights. In my view the learned trial
judge was at pains to consider all the relevant aspects in so far as it related to the
admission of Johnny Chan's evidence and properly exercised his discretion with which I
am not prepared to interfere.

Then there was the application by the State to call Oral Stoby as an additional witness. He
was a former Corporal of police. He was not called at the preliminary inquiry. He left the
force immediately after the post mortem on the 23rd November 1993. The State argued that
efforts were made to contact him in order to give evidence at that preliminary inquiry, but he
was not located. Such efforts consisted of messages sent over the radio as a result of which
he responded and prepared a statement in relation to this matter which he sent to the police
at Port Kaituma Station. There was no statement in the police file by Stoby before then. He
had made some notes at the time of the post mortem which were lodged at C.I.D.
Headquarters immediately after the post mortem. It was from those notes that he was able
to prepare a statement on the 28th November, 1995. His absence was explained in that he
was working somewhere in Ekereku area in the … This was considered to be a good
reason why he was not called at the preliminary inquiry. In addition Stoby's name vas
mentioned by the witnesses Sgt. Fraser and Clementson in their evidence. The post
mortem mentions his name as having been present and so it was contended that there
would be no surprise to the defence if he was called. At page 82 of the record the learned
trial judge recorded his ruling on this application as well, and in the further exercise of his
discretion allowed the additional evidence to be led. He gave in full his reasons for so
doing and held in the end that it would not be unfair to the accused to allow Oral Stoby to
be called as a witness in the circumstances bearing in mind what was said by the Court of
Appeal in Yasseen & Thomas v. The State, Criminal Appeal Nos. 36 & 39 of 1988.

In the final analysis, I am of the view that although the number of additional witnesses
called by the State may to some minds be cause for concern, I am satisfied that in each
case the learned trial judge weighed all the relevant circumstances in each and every case
and carefully examined the reasons advanced by the State for such additional evidence to
be led as well as the objections raised by counsel for the appellant and in my view properly

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exercised his discretion in a manner that caused no unfairness to the appellant. Every
opportunity to cross-examine the witnesses and even to have adjournments if necessary
was given to the defence which the defence either neglected or refused to accept.

I therefore would dismiss this appeal and confirm the conviction and sentence.

L.L. PERRY,

JUSTICE OF APPEAL.

Persaud, J.A.

The appellant was convicted of 2 (two) counts of murder by the jury and sentenced to
death.

Three grounds of appeal were advanced in this matter namely:–

(a) the verdict of the jury was unreasonable and against the weight of the evidence
primarily for the reason that the main witnesses for the prosecution, John Knights and
Johnny Chan were unreliable in that they have made previously inconsistent
statements; they being accessories, and their testimony at the trial damaged under
cross-examination;

(b) that the trial of the appellant was unfair in that there was every indication from the
trial judge's conduct that he assumed the role of advocate rather than a referee, when
he consistently filled gaps from the prosecution's case with his constant and regular
questioning of witnesses;

(c) the learned trial judge erred in allowing additional evidence from Joel Clementson;
Johnny Chan, Oral Stoby and Lennox Thornhill to be admitted in evidence at the trial
there being no good reason why such evidence was not lead at the Preliminary
Inquiry;

Counsel for the appellant abandoned ground (a) and relied on grounds (b) and (c). From
the evidence lead and from what I noted from the learned trial judge's questions to the
several witnesses, I am not persuaded that he intermeddled in the case, save to seek
clarification of certain aspects of the evidence as the case for the prosecution unfolded
itself. I find no merit in this submission grounded under (b).

The facts relevant to the determination of the issues in this appeal have been amply set out
by Perry, J.A. whose draft judgment I had seen and I do not propose to go them all over.

With respect to the ground whereby the learned trial judge allowed additional evidence to
be lead, there was much interesting arguments thereon, and it necessitates a much more
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detailed examination. Notices have been given to the appellant and copies of the additional
evidence submitted to him prior to the witnesses being called to testify. The witnesses
Clementson had testified at the Preliminary Inquiry, but the other witnesses did not.
Clementson gave additional evidence to that deposed to at the Preliminary Inquiry.
Thornhill was ballistic expert who had examined some pellets. He had issued his certificate
which was mentioned at the Preliminary Inquiry and he was called to testify at the hearing,
concerning his findings.

Chan was charged along with the appellant and committed for trial along with him. During
the course of the Preliminary Inquiry a statement allegedly made by him was tendered in
evidence and formed part of the proceeding. Upon receipt of the depositions after
committal, the D.P.P entered a nolle prosequi in favour of Chan, and he was later
summoned to testify for the prosecution.

The evidence of Stoby was not taken at the Preliminary Inquiry because there was no
statement in the police file. He had left the Police Force shortly after the post mortem
examinations on the bodies of the deceased. After he left the force he prepared a statement
and sent same with a boat captain to the police at Port Kaituma, but that statement did not
find itself in the police file when the Preliminary Inquiry was being conducted. He was not
therefore called as a witness.

During the Preliminary Inquiry when Sgt. Joseph testified, he mentioned Stoby in his
evidence; that Stoby was present at the post mortem examinations; that himself and
Clementson along with Stoby were present when two boxes were taken to Le Repentir
Mortuary from Eve Leary; Clementson had deposed that Stoby was present when boat with
bones was found at the Creek and later taken to Le Repentir Mortuary; the post mortem
examination report mentions the name of Stoby as being present.

In Yassin & Thomas (No.1) v. State (1990) 44 W.I.R. 219 the prosecutor sought to introduce
evidence from a police officer whose evidence had not been given at the Preliminary
Inquiry, although notice had been given to the appellant before the trial, of the intention to
call him as a witness. Objection was taken to the admissibility of the evidence which
accorded with other evidence which had been produced at the Preliminary Inquiry and
significantly strengthened the case for the prosecution. The trial judge satisfied himself that
the defence was not taken by surprise in a manner which was likely to be prejudicial and
admitted the evidence.

The appellants were convicted and on appeal, the Court of Appeal held that at common law
the failure to produce evidence at the Preliminary Inquiry did not render that evidence
inadmissible at the substantial trial unless due notice was given to the defence, but in the
exercise of his discretion the trial judge might exclude the admission of such evidence in an
appropriate case, e.g. if there had been a deliberate and unexplained withholding of
material evidence of the police officer at the Preliminary Inquiry having been given, the
evidence should not have been admitted.
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The court then went into a detailed examination of the statute and authorities. The evidence
in that case, which was admitted, implicated both appellants in the offence and must have
weighed heavily in favour of the State. In R v. Stiginani (1867) 10 Cox CC 552 the facts
were that in the course of the case and after all the witnesses for the prosecution who were
produced before the magistrate had been examined, the prosecutor tendered a new
witness whose deposition had never been taken and in respect of whom they had given no
notice to the prisoner that it was the intention to call him. The trial judge was of the opinion
that if evidence was relevant it ought to be received but notice of its production ought to be
given to the prisoner or his attorney and if no such notice was given it was a subject for
strong comment. We should note here that the court is not saying that the evidence is not
admissible, neither is it saying that it ought not to be admitted in evidence.

In the Jamaican case of R v. Clarke (1970) 16 W.I.R. 59, the Court of Appeal held that new
or additional evidence could, subject to adequate notice being given, be introduced at the
trial whether or not it was available at the Preliminary Inquiry, and went on, “we hold that
failure to call a witness at the Preliminary Inquiry does not preclude the prosecution from
calling that witness at the trial provided that notice of intention to do so is duly served”.

In Yassin & Thomas (supra) the court examined section 62 of the Criminal Law (Procedure)
Act, and sections 76-77 of the Administration of Justice Act, 1978, and per George, C.
declared “the above provisions, although not couched in mandatory language, can be said
to form a special code, the purpose of which is to ensure as far as possible that there
should be full disclosure of all material evidence that was available up to six months after
the receipt by the D.P.P of the deposition and other documents in a criminal case.
Accordingly, it would seem that the general principles governing the reception of additional
evidence have been modified and can only be invoked if such evidence becomes available
more than six months after an accused person has been committed to stand trial, or in event
that it had been available before, the prosecution is able to satisfy the court that there was
some good reason why it was not led at the Preliminary Inquiry.”

In this case the appellant was indicted by the D.P.P within six months of the receipt of the
depositions and as such he could not invoke the assistance of section 77 of the Criminal
law Procedure Act, Cap. 10:01 to reopen the inquiry. Moreover the additional evidence
sought to be lead came to attention after the appellant had been indicted. As Perry, J.A.
reasoned to reopen the inquiry would necessitate the quashing of the order of committal
and that would have lead to grave, and undesired consequences.

Section 151(1) of the Criminal Law (Procedure) Act, provides that should an accused be
taken by surprise whereby he is likely to be prejudiced in his defence, or if the court is
satisfied that the State is entitled to produce rebutting evidence, it may adjourn the further
trial of the cause, or discharge the jury from giving a verdict and postpone the trial.

This provision in the law underpins the concept that such evidence which the prosecution
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wishes to call at the trial and was not available at the Preliminary Inquiry, or was available
but not called, is not inadmissible evidence, but evidence which though admissible could
be rejected and disallowed by the court in the exercise of its discretion upon a
consideration of all the facts and circumstances, including the reasons advanced for the
non production of the evidence at the Preliminary Inquiry stage.

In R v. Gomes (1962) 5 W.I.R. 7 the court properly refused to admit the additional evidence
at the trial. The evidence was similar-fact evidence and no reason was advanced for its
non-production at the Preliminary Inquiry stage.

In Yassin & Thomas (supra) at p. 256, Churaman, J.A. referring to Gomes said, “In resolving
these questions of policy and principle, it is essential in my view to bear in mind two
legitimate interests involved here: the public interest that the guilty be brought to justice and
punished, and the citizen's right to have full disclosure of the case he has to meet at trial. A
sensible balance has to be struck between these two legitimate interests, each of which
may be powerfully argued for superiority over the other”.

I agree totally, and this principle has been given support also by George, C. in the said
case. Churaman, J.A. then went on, “a sensible balance is found, in my view, in the
principle enunciated in Gomes and I would think it somewhat rash of me to suggest any
emendation to the very able judgment of Bollars, J.”.

In my judgment the principle enunciated in Gomes ought not to be used as a universal

guide because the issue there was similar fact evidence. That evidence was available and
no reason advanced why it wad not lead at the Preliminary Inquiry: Bishop, J.A. (as he then
was) in Yassin & Thomas (supra) enumerated some of the problems an accused would
encounter at the trial if such evidence was lead. He explained, “(prisoner) would suffer
embarrassment and prejudice if, at that stage, he were to attempt to re-organise his
defence, in the light of the similar - fact evidence sought to be led; that witnesses and/or
material valuable to him in testing and disputing that evidence might all have become
unavailable through his failure duly to secure them because the case, as presented at the
Preliminary Inquiry, did not foreshadow that similar fact evidence was in the possession of
the possession of the police …” As Lord Moulton in R v. Christie [1914-15] All E.R. 63 at 69
remarked, “The law is so much on its guard against the accused being prejudiced by
evidence which, though admissible, would probably have a prejudicial influence on the
minds of the jury which would be out of proportion to its true evidential value.”

But no such situation arose in the case. Dealing with the same issue, Lord du Parcq in
Noor Mohamed v. R [1949] 1 All E.R. 365 at 370 pointed out: “In all such cases, the judge
ought to consider whether the evidence which it is proposed to adduce is sufficiently
substantial, having regard to the purpose to which it is professedly directed, to make it
desirable in the interest of justice that it should be admitted. If, so far as that purpose is
concerned, it can, in the circumstances of the case, have only trifling weight the judge will
be right to exclude it. To say this is not to confuse weight with admissibility. The distinction
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is plain but case must occur in which it would be unjust to admit evidence of a character
gravely prejudicial to the accused, even though there may be some tenuous ground for
holding it technically admissible. The decision must then be left to the discretion and sense
of fairness of the judge”.

I can put it no better than, and wish to adopt all that, George, C. said in Yassin & Thomas
(supra) at page 236:–

“There could be several good or excusable reasons for the omission to lead a
certain witness at the Preliminary Inquiry … the evidence omitted may only have
become relevant during the course of the trial; or it may have been omitted
through inadvertence due to the large volume of evidence; and I think that in this
regard one must be pragmatic, prosecutors in the Magistrate's Court are police
officers and although several of them are quite competent, others lack the
required skill and experience. In some instances a rank as low as that of
Corporal has been called upon to prosecute in these courts. Should an accused
person be allowed to benefit from the failure of such a prosecutor to appreciate
the importance of a particular witness's evidence? I think not. If however, there
is evidence that the omission to call an important witness or to lead an important
piece of evidence at the Preliminary Inquiry was deliberate and not otherwise
excusable, then it may well be that this would amount to such unfairness, even if
adequate notice is given, as to justify a judge in exercising his discretion to
exclude the evidence, or alternatively, to invoke section 151(1) of the Criminal
Law (Procedure) Act.

In this matter, the appellant was not prejudiced by the leading of the additional evidence -
he was offered adjournments by the learned trial judge; the evidence lead was not of a
trifling nature; the evidence was foreshadowed by other witnesses who had gone before,
and in my judgment, the reasons advanced for the State were good and valid. The learned
trial judge exercised his discretion in a just and proper manner in deciding to admit the
evidence. I find that the trial of the appellant was fair; he could not have been embarrassed
or prejudiced. His counsel did not think it necessary or wise to seek adjournment which
was offered by the learned trial judge on each occasion he ruled that he would allow the
evidence to be admitted.

I would dismiss the appeal and affirm the convictions and sentence:

P. Persaud J.A.

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