The Guyana Court of Appeal yesterday overturned the murder convictions and death sentences of Elmo Benedict and Dave Banwarie for the 2008 killing of Rakesh Rajaram.
Setting aside the conviction and sentences, the appellate court, comprising Chancellor Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory, instead imposed a manslaughter conviction and a 25-year sentence on each appellant, with deductions to be made for time served.
Prior to being sentenced in 2012, the men had been imprisoned in 2008 after the killing.
In handing down its unanimous ruling yesterday morning, the court said it found that the trial judge failed to adequately direct the jury on the presence of the defence of provocation, which was available to the appellants.
The court said that the cumulative effect of the non-direction and withdrawal of the defence of provocation was an error on the part of the trial judge.
As opposed to the defence’s contention, however, the appellate court said it did find that the trial judge had given the jury adequate directions on manslaughter.
The appeal court heard from Justice Gregory, by whom the judgment was read, that trial judge, Justice James Bovell-Drakes, had also properly directed the jury that the burden of proof always lay with the prosecution.
Following a High Court Trial in 2012, both men were found guilty of the capital offence by a 12-member jury. Death sentences were then imposed upon them by Justice Bovell-Drakes.
The court said it also found that at no time did Justice Bovell-Drakes blur the lines as to who had the burden of proving the case levelled against the then accused.
Against this background, the judge said that this ground of appeal had no merit.
Benedict and Banwarie’s appeal was presented by attorney Mark Conway.
The state, meanwhile, was represented by Prosecutor Diana Kaulesar-O’Brien.
Benedict and Banwarie had appealed their cases on grounds that the trial judge gave no directions to the jury on the “standard of proof” needed from the prosecution and, therefore, erred in law for blurring that standard.
They argued, too, that Justice Bovell-Drakes erred in law for not directing the jury to consider manslaughter in the absence of provocation, and failed to adequately address the jury on the latter.
Finally, the appellants contended that their sentences were too severe.
In April of 2012, at the Berbice Assizes, Justice Bovell-Drakes sentenced Benedict and Banwarie to death, after the mixed jury returned unanimous verdicts, convicting them both for Rajaram’s murder.
The state’s case has been that on March 3rd, 2008, Benedict and Banwarie had gone to Rajaram’s Sandhills, Berbice River camp in search of Romena Benedict—Elmo’s sister, and Banwarie’s common-law partner.
Noticing that Romena was in the camp with Rajaram, the prosecution had said that the two men rushed in and together, being armed with a cutlass and a hose, they inflicted injuries on Rajaram.
A wounded and bloodied Rajaram would later be rushed to the New Amsterdam Hospital, where he was pronounced dead on arrival.
An autopsy report recorded the cause of death as shock and haemorrhage, along with multiple cuts.
In their defence, the convicts claimed that Rajaram had pulled a gun on them.
