A JURY in 1973 found rape accused, Kowshall Persaud guilty of raping a 15-year-old girl on an Essequibo beach on Christmas Day; but as luck would have it, he appealed the decision and was able to persuade that court that the trial judge had erred in not directing the jury fully in relation to the defence of consent and corroboration. The accused had contended that he and the girl, V.S., were friends, and that she had agreed to have sex with him as a Christmas gift; but that while the intercourse was ongoing, the voices of a band of men had disturbed them, causing him to run away.
The naked girl told the naked truth, and was helped by one of the invaders, who gave her a shirt to clothe her nakedness, and a woman who gave her a half-slip to cover up.
Her story was that she had been raped by the accused, who had stripped her; and that she had bitten him on the lips and scratched his neck in an effort to dissuade him from committing the crime, but that did not help.
The accused was charged with having carnal knowledge of the girl without her consent, and at the trial at the assizes, the jury had agreed with her story and her alleged lover had been convicted and sentenced to prison.
But Kowshall appealed the conviction and sentence, and had his appeal allowed by the Court of Appeal, which ordered that the conviction and sentence be set aside.
The trial judge had been blamed for failing to direct the jury fully, thus leaving its members to speculate.
That Appellate Court was constituted by Chancellor E.V. Luckhoo and Justices of Appeal Guya Persaud and J.O. F. Haynes.
Senior Counsel Mr. Doodnauth Singh had appeared for the appellant, while Mr. W.G. Persaud, Assistant Director of Public Prosecutions, had represented the State
The facts of the case were that the 15-year-old girl had disclosed that on Christmas Day 1973, she was violently sexually assaulted by the appellant on a beach on the Essequibo Coast, and that in the course of the ensuing struggle, she had bitten his lips and scratched his neck as he stripped her naked and threatened to murder her should she shout.
Intercourse was, however, disturbed by the voices of men approaching, and the girl V.S. had thus managed to effect her escape. She was assisted by a man who gave her a shirt to cover her nakedness, and by a woman who gave her a half-slip to wear.
On December 30, the appellant was contacted at home, where the police questioned and took him to the doctor, who issued a medical certificate after examining him and observing there were partially healed abrasions to the neck and on both upper and lower lips. The certificate said that the abrasions were consistent with fingernail scratches and human bites.
The appellant explained that he and his companion were friendly before Christmas Day; 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, having carnal knowledge of V.S. without her consent, and the jury was 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 to having sexual intercourse with the complainant; and that the only question for them to consider was whether there was consent to intercourse.
If, however, the girl had originally agreed to intercourse but changed her mind, told him so, and he persisted with the act, that was rape.
However, the trial judge did not warn the jury — 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, or the accused that he did consent.

On appeal, it was held:
(i)(per E.V. Luckhoo, Chancellor) that in the circumstances of this case, where the jury was being invited specifically to consider whether the girl might have consented originally and then changed her mind, the further question should have been specifically put, viz, whether the accused might have honestly considered that the original consent still subsisted. Any omission to do so would be a very serious misdirection.

(ii) (per Persaud and Haynes J.J.A.)that the trial judge fell into very grave error.  The question of corroboration still mattered importantly.  The jury should have been warned that, in the eyes of the common law, it was considered dangerous to convict on the uncorroborated evidence of V.S. that she did not consent; that they ought not to accept and act upon such evidence that if after paying full attention to the warning, they were satisfied of the truth of her evidence on the absence of consent, then they may legally convict.

(iii) (Per Haynes, JA) that from the directions as worded, the jury was left, or had been left, with the understanding that as the appellant has admitted  intercourse, there was no dangerous risk in (convincing) convicting on her evidence alone that she did not consent, they could approach this aspect merely  as a question of V.S’s belief, or the accused, without observing   the necessary risk 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 (in) accepting the evidence  of `V.S.

(iv) (per Haynes, JA) that the  Judge did not invite the jury to consider whether the injuries caused to the appellant’s  lips and neck, which according to the 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 as to the appellant‘s false explanation of the injuries to the police, were capable of amounting to corroboration of the complainant’s testimony.

(v) (per curiam) that the appeal must be allowed because the independent evidence before the jury was not 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.