-not buggery, robbery, nor attempted murder

IN 2000, Berbice labourer, Irfan Ally, who was found guilty of raping a 65-year-old woman, but not of buggery, robbery with violence and attempted murder committed on the same woman, appealed on the ground that the jury’s verdict was inconsistent. But the Guyana Court of Appeal, constituted by Chancellor Cecil Kennard and Justices of Appeal Mr. Lennox Perry and Mr. Prem Persaud, who held a contrary view, dismissed the appeal and affirmed the conviction and 16-year prison sentence imposed on the prisoner. Among other things, the Appellate Court, in rejecting the Grounds of Appeal, held the view  expressed in the 1998 Edition of Archbold, where it is states at para. 7 – 70:

“An appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has the burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an Appellate Court.”

It goes on to say: “The Court will interfere if it is satisfied that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion which was reached.”

Justice Kennard (now Chairman of the Police Complaints Authority), who delivered the judgment on behalf of the Court, said:-

“I am not satisfied that the verdicts were so inconsistent as to call for interference by an Appellate Court.   I am satisfied that any reasonable jury which has applied their minds properly to the facts in this case would have arrived at the same conclusion which had been reached in the present case.

“In the circumstances, we would dismiss the Appeal and affirm the conviction and sentence.”

The facts disclosed that the Appellant was convicted at the Berbice Assizes on November 5, 1996 for the offence of rape, allegedly committed on the woman on September 16, 1995 at D’Edward Village, West Coast Berbice.

He was sentenced to a term of imprisonment of 16 years for the said offence. He appealed his conviction on the sole ground that the verdict of the jury was inconsistent, in that the jury incomprehensibly convicted him for the offence of rape and acquitted him of the offences of buggery, robbery with violence and attempted murder, when the case for the State rested wholly on the evidence of the victim, which related to one activity  or one transaction.

In his judgment, Justice Kennard noted from the ground of appeal that the appellant was also indicted for the offences of buggery, robbery with violence and attempted murder committed on the said woman and in respect of which he was found Not Guilty by the jury.

Directing his remarks to the evidence which the State relied on, the Chancellor said: “The victim lives at D’Edward Village, West Coast Berbice. On the 16th September, 1995, about 2:15pm, she went to her backyard in order to burn some leaves there.   She was 65 years old.

“Whilst in her backyard, she felt someone holding her from the back. That person then proceeded to pull her along the ground, and, as a result, her spectacles and dentures fell off.  The person then turned her body; as a result, she was then lying on her back.  She then observed the appellant, who was then about 2 feet from her on his knees and unbuttoning the fly of his trousers.

“The appellant then forcibly had sexual intercourse with her; when dust got into her eyes, she closed them.  She struggled with the appellant and was shouting during the process.

“However, despite her best efforts to resist him, the appellant proceeded to insert his penis in her anus.  During this episode, her head was bleeding as a result of it being held by the appellant and being struck on the ground.   He then removed her wedding ring from her finger.”

Continuing with his summation, the Justice Kennard said: “What took place after this is revealed in the evidence of the victim, where she stated inter alia:

‘I heard the voice of a little boy who lives in front of me.  I did not open my eyes because of the dust.  Then the appellant jumped over me on his knees, lifted up my head, put his two hands on my throat and began to choke me.  I got breathless. He said: ‘You want Mayjee to come and see what happened to you?  You got to dead.’

‘He placed his two hands on my throat pipe until my tongue came out. I felt a junk of slime coming out of my mouth.   Then I opened my eyes widely and I saw the accused.  After that, I felt as if the place was moving around with me and I did not know anything more.   I regain consciousness at the New Amsterdam Hospital the next day.’”

According to the medical evidence, the victim was examined by one Dr. Raghunauth at the New Amsterdam Hospital at about 9:15am on September 16, 1995 (the date of the incident), and  found evidence of forceful sex, injuries about the body, but no evidence of buggery.

As Justice Kennard had observed, even though the offences were committed during one incident, nonetheless, they were committed  at different points of time and the verdicts were clearly justifiable from the evidence led at the trial.

Noting that the only evidence implicating the appellant with the commission of the offences is that of the victim, he declared that the trial judge on numerous occasions reminded the jury of that.     

Noting also that the trial judge had, among other things, directed the jury to return a formal verdict of Not Guilty on the fourth count of attempt to commit murder, Justice Kennard said: “So far as the first count of rape, for which the appellant was convicted, there was the evidence  of Dr. Raghunauth, which confirms the evidence of the victim that she had been forcibly sexually assaulted, and the jury must have been satisfied that that offence had been committed.”

He however declared that in relation to the second count of buggery, for which the appellant was acquitted, “the jury must have been in doubt whether this offence was indeed committed, as the doctor had found no injury to the anus.”

The jury, he said, “had been directed to consider each count separately, and told that if they were in doubt about any aspect of the matter, they should give the appellant  the benefit of the doubt by returning a verdict of Not Guilty.”

In relation to the count of robbery with violence, Justice Kennard said: “The evidence is that the victim had her eyes closed at the time her wedding ring was removed from her finger.   And, here again, the jury  must have been in doubt whether it was the appellant who had in fact removed the ring from the finger of the victim, if in fact she did have the ring.”

In dismissing the matter, the Appellate Court was not satisfied that the verdicts were so inconsistent  as to call for interference by an Appellate Court. As Justice Kennard observed in closing: “I am satisfied that any reasonable jury which had had applied their minds properly to the facts in this case would have arrived at the same conclusion which had been reached in the present case.”

At the hearing of the Appeal, Attorney-at-law, Mr. Khemraj Ramjattan had appeared for the appellant, while Deputy Director of Public Prosecutions, Ms. Yonette Cummings-Edwards (now Justice of Appeal) had appeared for the State.