IN 1967, a judge led a Demerara Assize jury to believe that the unsworn evidence of a nine-year-old girl could corroborate the sworn testimony of her mother that she (the mother) had been raped by a burglar.
As a consequence of the judge’s misdirection, the jury found the alleged burglar and rapist, Boodram Lall, guilty of burglary and rape, resulting in the judge sentencing him to concurrent terms of imprisonment for seven years.
Lall, represented by Mr. JOF Haynes, QC, appealed. The Guyana Court of Appeal allowed the appeal and quashed the convictions and sentences.
The facts of the case disclosed that the appellant Lall was indicted on two counts, firstly, for ‘burglary with intent to commit rape’ and secondly, ‘rape’ on K, the mother of KR,  a nine-year-old girl.
The trial judge questioned the child and recorded his opinion  that she was not 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 trial judge said.
The jury was directed that the rule of practice was to look for corroboration of the mother’s evidence.  Quite properly,  he told them that they could convict  on the  uncorroborated evidence of the mother but he also told them  over and over again that K.R.’s unsworn evidence corroborated the mother’s  testimony.
The Appellate Court held:
(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 so entitled to do, or, on the evidence as corroborative of the mother’s testimony.

The Appellate Court, constituted by Chancellor Kenneth Stoby, and Justices of Appeal,  Percival Cummings and Victor Crane, allowed the appeal and quashed the convictions and sentences.
Queen’s Counsel,  Mr. J.O.F. Haynes appeared for the appellant,  while Mr. Neville Graham, Senior Crown Counsel, appeared  for the respondent.
Delivering the judgment, Chancellor Stoby  noted that the trial of the appellant  took place at the Demer Assizes on the 10th of April ,1967.  He was arraigned  on an indictment containing two counts , the first charging, ‘burglary  with intent  to commit the felony  of rape’, and the second  ‘committing rape’ on  K.,  the mother of K.R.
After a trial lasting two days, he was convicted on both counts and sentenced  to  concurrent terms  of imprisonment of seven yeas.
Continuing, the Chancellor said: “At his trial, a nine-year-old girl, K.R, was called by the Crown as a witness. The judge questioned the child, and at the conclusion of his 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 is whether the trial judge was correct in directing the jury that the unsworn evidence  of the child could  corroborate sworn evidence.
“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 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 obligation 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 Omychund v. Barker, (1744)”
The Chancellor went on to say that in this country,  in1894 , the Legislature passed an Evidence Ordinance by which a child and certain other categories of people  who were ignorant of the nature and obligation  of an oath  could give evidence without oath, provided the judge considered  the child or other persons  were  of competent understanding.
Pointing out that there were many similar directions that were given to the  jury,  Chancellor Stoby, in his judgment, declared that there was clearly no direction in the light of the proviso to Section 71, but  the  alternative  situations  on either of which  it was suggested  to them  they could  act,  were put in the manner:
(a) They might either return a verdict  on the uncorroborated  evidence  of the mother K. alone , though it would be dangerous  for them to do so; and
(b) if they were not so minded  and desired corroboration of it , they might choose to find in her child’s evidence, provided they could safely rely on it.
If, however, they found that they could not rely on the child’s evidence, they would be left only with the mother’s evidence, on which it would be dangerous to act.
The Chancellor declared as he allowed the appeal and quashed the convictions and sentences: “Such being the directions of the learned judge,  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 it would be dangerous for them to act on the uncorroborated  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 ( the jury) 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.”