FIFTEEN-year old girl, V.S., who was allegedly stripped naked and raped by Kowshall Persaud in 1973, had her attacker convicted by an Assize jury.
But on appeal, the Guyana Court of Appeal found that the trial judge omitted to tell the jury to look for corroboration, in accordance with the evidence.For this error, the conviction and sentence were set aside and the accused was freed.
The Appellate Court was constituted by Chancellor, E. V. Luckhoo and Justices of Appeal Guya Persaud and J. O. F. Haynes.
The facts of the case disclosed that V.S. aged 15, explained that on Christmas Day, 1973, she was violently sexually assaulted on a beach on the Essequibo Coast.
And in the course of the ensuing struggle , she bit his lips and scratched his neck as he stripped her naked and threaten to murder her should she shout.
According to the judgment of the Appellate Court, intercourse was, however, disturbed by the voices of men approaching and V.S. thus managed to escape.
She was later assisted by a man who gave her a shirt and by a woman who gave her a half slip to wear.
On 30th December , the appellant was contacted at home. There the police questioned him and took him to a doctor who issued a medical certificate after examining him and showing there were partially healed abrasions to the neck and on both upper and lower lips.
The certificate said the abrasions were consistent with finger-nail scratches and human bites.
The appellant explained that he and the complainant were friendly before Christmas Day and that she had agreed to have sexual intercourse with him on the beach where they both stripped and were in the act when voices were heard.
He became afraid, picked up his clothing and ran off.
At the assizes , the appellant was charged with and convicted of the offence of having carnal knowledge of V. S. without her consent , and the jury were directed that in this case, corroboration of the complainant’s story did not matter because the appellant had supplied the necessary corroborative evidence by admitting sexual intercourse with the complainant, and that the only question for them to consider was whether there was consent to the intercourse.
If, however, V.S. had already agreed to intercourse but changed her mind, told him so, and he persisted with the act , then that was rape.
However, the trial judge did not warn them , as he ought to have done, of the danger of accepting the uncorroborated testimony of the complainant as to consent , but left the matter simply for them to determine whether they believed her that she did not consent. On appeal,
It was held: (1) (per Chancellor E. V. Luckhoo) In the circumstances of this case, where the jury was being invited specifically to consider whether V.S. might have consented originally and then changed her mind , the further question should have been specifically put, viz, whether the accused might not have honestly considered that the original consent still subsisted. An omission to do so would be a very serious misdirection.
(2) (per Persaud and Haynes) The trial judge fell into very grave error .
The question of corroboration still mattered importantly. The jury should have been warned that in the eye of the common law, it was considered dangerous to convict on the uncorroborated evidence of V.S. that she did not consent, but they ought not to accept and act upon such evidence , but that if after paying full attention to the warning they were satisfied of the truth of her evidence of the absence of consent, then they may legally convict.
(3) (per Haynes J.A.) From the directions as worded, the jury were left, or might have been left, with understanding that, as the appellant had admitted intercourse, there was no danger or risk in convicting on her evidence alone that she did not consent ; that they could approach that aspect merely as a question of V.S. belief of or the accused without observing the necessary rule of prudence or without approaching the evidence with the special caution the common law demanded , and that there was no real need to look for corroboration of the material facts bearing on the absence of consent before accepting the evidence of V. S.
(4) (per Haynes J.A.) The judge dd not invite the jury to consider whether the injures to the appellant’s lips and neck which, according to medical report , could have been caused by a woman’s bite or scratch, could indeed have amounted to corroboration when such evidence was so capable; also to find whether
the appellant’s false explanation of his injuries to the police was capable of amounting to corroboration of the complainant’s testimony.
(5) per Curiam) The appeal must be allowed because the independent evidence before the jury was not so strong or so cogent or so convincing or so overwhelming as to satisfy one that , if an impeccable direction had been given, a reasonable jury would inevitably have reached the same conclusion.
Appeal allowed. ConvIction and sentence set aside.
The Court of Appeal referred to 28 cases in support of its judgment.
Senor counsel Mr.Doodnauth Singh represented the appellant.
W.G. Persaud, Assistant DPP (ag.) for the State.