Judge’s misdirection helps free convicted rapist

CONVICTED burglar and rapist, Boodram Lall, who in 1967 was found guilty on the unsworn evidence of a child that corroborated sworn testimony of the mother, appealed and was freed by the Guyana Court of Appeal. That court, constituted by Chancellor Kenneth Stoby and Justices of Appeal P A Cummings and Victor Crane, found that the trial judge had erroneously told the jury at the trial that the child’s unsworn testimony was capable  of corroborating the mother’s evidence.
As a result, the appeal was allowed and the convictions and sentences quashed.
The facts of the case disclosed that the appellant was indicted on two counts, firstly, for ‘burglary with intent to commit rape’ on K, the mother of KR, a nine-year-old girl.
The trial judge questioned the child and recorded the opinion  that she was of sufficient  competent understanding  to give evidence, but he did not permit her to be sworn, as he did not think she understood the nature of an oath, and as a result, she gave unsworn evidence.   Her testimony, if admissible and if believed, afforded strong corroboration  of her mother’s evidence.
The jury were directed that the rule of practice was to look for corroboration  of the mother’s evidence.  Quite properly, the trail judge told them that they could convict  on the uncorroborated evidenced  of  the mother, but he also told them over and over again that  K R’s  unsworn evidence corroborated the mother’s testimony.
That court held that: (i) The unsworn evidence of a child could not be used to corroborate the sworn testimony of another person;  (ii) the directions were of such a nature that it was impossible to say whether the jury  relied for their verdict  of  “Guilty”  on the uncorroborated evidence of the mother  alone,  coupled with the warning that they were entitled to do, or,  on the evidence of the child as corroborative of the mother’s testimony.
That court, which allowed the appeal – quashing the convictions and sentences – had made reference to nine cases.
Queen’s Counsel Mr. J O F Haynes  had represented the appellant,  while Mr. NA Graham, Senior Crown Counsel, appeared for the respondent.
Delivering the judgment of the Court, Chancellor Stoby said that the Jury trial took place  in  April,1967 at the Demerara Assizes.
After a trial, which lasted two days, the accused was convicted on both counts and sentenced to concurrent terms of imprisonment of seven years.
According to him, at the trial, a nine-year-old-girl, KR, was called by the Crown as a witness.
The judge questioned the child, and at the conclusion of the questioning, recorded that in his opinion, she was of sufficient competent understanding  to give evidence.  The judge did not permit  her to be sworn, as he did not think  she understood the nature of the oath, and in the result,  she gave unsworn evidence.   Her evidence, if admissible, and if believed, afforded strong corroboration  of her mother’s evidence.
The main ground of appeal, said the Chancellor, was whether the trial judge was correct in directing the jury that the unsworn evidence of a child could corroborate sworn evidence.
As he explained: “The manner in which the law developed to permit the unsworn testimony of witnesses is not without interest.  In early times, all evidence had to be given  on oath and on the Gospel;  no one but a Christian could testify.
“Competency to testify,” he said, “depended upon acceptance  of the witness’ belief in the Gospel .  Non-Christians and children of tender years were deemed to be  ignorant  of the nature and obligations of an  oath;  they were not allowed to be sworn  and so could not testify.    Such was the state of the law until the celebrated case of  Omychand v. Barker, (1744)  1 Atk  22 in which the depositions of Indian witnesses  of the Gentoo religion,  taken by Order of Court   according to the local ceremonies  on  commissions  in the East Indies, were admitted  and read in evidence  after being objected to.”
Expanding further on the matter, Justice Stoby said: “In the report of this case,  at page 29, LORD CHIEF JUSTICE LEE remarked that it was determined at the Old Bailey, upon mature consideration, that a child should not be admitted to give evidence  without oath;  and  LORD CHIEF  BARON PARKER, in the same case, said that it was so ruled  at Kingston Assizes before LORD RAYMOND, where,  upon an indictment for rape,  he refused the evidence of a child without oath.”
The old cases of R. v. Powell (1775)   1 Leach 110 and R. v. Braster, (1779) 1 Leach 199, he said, “both emphasize the fact that though there was no precise or fixed rule as to the time within which  infants are excluded from giving evidence, the testimony of an infant was not receivable under any circumstance except under oath.”
After reviewing a number of cases,  and perusing the directions of the trial judge,  the Chancellor declared: “It is impossible  for us to say  which of these two alternative situations the jury accepted –  whether they relied  for their verdict  of ‘Guilty’  on the uncorroborated evidence  alone coupled with the warning as they were entitled to do, or on the evidence  of the child as corroborative of the mother’s.
“Indeed, the jury, having been told  that it would be dangerous for them  to act on the uncorroborative evidence  of K alone,  may very well, it is contemplated, have heeded the judge’s warning and convicted with the help of the evidence  of the child which was repeatedly suggested to them  as being capable of corroborating the mother’s.
“It seems to us that the likelihood  of a verdict of  ‘Guilty’  returned in such circumstances  without the proviso (14)  being explained  to them is unsafe, and founded  as it is  on a non-direction which amounted to a misdirection in law ought to be set aside in the interests of justice.”
So saying, Justice Stoby declared the appeal allowed and the convictions and sentences quashed. Both Justices Cummings and Crane concurred.

SHARE THIS ARTICLE :
Facebook
Twitter
WhatsApp

Leave a Comment

Your email address will not be published. Required fields are marked *

All our printed editions are available online
emblem3
Subscribe to the Guyana Chronicle.
Sign up to receive news and updates.
We respect your privacy.