IN 1966, the Appellate Court of Guyana freed convicted rape accused Samuel Dubar because the judge at the jury trial had given the jury an unrealistic picture of the defence as it related to uncorroborative evidence, etc. Consequently, Dubar, who was convicted and sentenced to four years’ imprisonment for rape, appealed and had his conviction and sentence quashed by the Appellate Court, constituted by Justices of Appeal Edward Luckhoo, Guya Persaud and P.A. Cummings.

The facts of the case disclosed that on May 21, 1966, a girl who gave her age as being “now in 14 years” was dipping water from a trench  when the appellant suddenly came up behind her, held her hand,  and threw her down on the ground, choked her, removed her panties, and had sexual intercourse with her.

The girl had no external signs of injury, and the medical examination revealed rupture of the hymen in two or three places. But the doctor gave evidence that those ruptures were consistent with sexual intercourse engaged in at least two weeks before the incident, or longer.

The girl alleged that the appellant was the first man who ever had sexual intercourse with her, and that it took place on the very day of the incident.

The appellant gave a written statement to the police on May 23, 1966, which he adapted from the dock at his trial, to the effect that they were friends, and had had sexual intercourse some time before. He alleged that he had asked her for sex that day, but she had declined, saying that he was to be engaged to another girl in a few days’ time.

He vehemently denied the allegation of rape.
On appeal against his conviction and sentence, the Appellate Court held that:
(i) Although there was ‘opportunity’ and ‘desire’ on the part of the appellant to have sexual intercourse with the girl, those aspects could not be considered in isolation, since they were wedded to other elements in the statement which sought to explain how the desire arose, why nothing came of the opportunity, and a possible motive for the allegation.

In referring to this ‘opportunity’ and ‘desire’, the trial judge gave an unrealistic picture of the defence, since there were only two circumstances in the context of other related and germaine answers;

(ii) further, when those ‘bits’ and ‘pieces’ of evidence were placed before the jury, they were, in effect, being invited to treat it as corroboration after they had been clearly told no corroboration existed;

(iii) although the sworn evidence of a child  need not be corroborated as a matter of law, the jury should be warned not that they must find corroboration, but there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth;

(iv) a girl in her fourteenth year should fall within the category of a young girl, and

(v)  the requirement of warning the jury of the danger of acting on the uncorroborated evidence of a young child is no longer a matter of discretion for the trial judge, but a peremptory prerequisite.

At the hearing of the appeal, the appellant was represented by Senior Counsel, Mr. Fred Wills.
Assistant Director of Public Prosecutions, Mr. J. Gonsalvles-Sabola, appeared for the respondent.

Justice of Appeal Edward Luckhoo, who delivered the judgment of the court, noted that the appellant was convicted of having carnal knowledge of the girl without her consent on May 21, 1966, contrary to Section 76 of the Criminal Law (Offences) Ordinance, Chapter 10, and was sentenced to be imprisoned for four years.

According to him, the girl was then under the care of her cousin, Susan Gibbons, with whom she resided, and who gave her age at the trial in November 1966 as being “now in 14 years”.
The little girl was medically examined by Dr. Hardutt Singh, the Government Medical Officer of the district, on the very day — May 21. He found the hymen had been ruptured in two or three places, but not recently; those ruptures, he said, were consistent with intercourse at least two weeks before or longer.

In her evidence, the girl said, “The accused was the first man with whom I ever had sexual intercourse, and it was on that day.”

Continuing, Justice Luckhoo said the trial judge directed the jury that there was no corroboration to be found in the case; and that in view of the medical evidence, they should find that she was not speaking the truth when she said the incident of the 21st May, 1966 was her first experience with sexual intercourse.

He said: “It seems the doctor’s evidence gives the lie to that; but it does not mean that you have to reject all of her evidence.”
Justice Luckhoo went on to say it would be apparent, therefore, that because of the age of the girl, the absence of corroboration, and the probability that she had lied on the question of not having sexual experience before, the necessity for a very careful summing-up throughout was essential.

The girl’s story was that when she was dipping water from a trench, the appellant suddenly came up behind her, held her hand and threw her down, she did not expect him to come up’ she ‘fought’ up; he kept choking her for about ten minutes – pressing her throat hard; during that time, he removed her panties and had intercourse with her. There was no evidence of any external injuries.

On the 23rd May 1966, the appellant, in a written statement to the police, told his story, which was consistent with his earlier denials of the allegation of rape, and was as follows:

“Myself and Sahadat and a girl name Data were sitting at my bottom house the same Saturday (21.5.66) when I saw this girl passing. Myself and her were gaffing whilst going to the pond for water, and I ask her foh leh we sex, she say no because ah got a girl already and ah getting engage Sunday coming (29.5.66).

“We only spend five minutes at the pond gaffing, and in that five minutes ah dumb woman (Raj) saw us. That is all wha happen that day. Wwhen she go home ah ent know what she tell she grandmother, and she grandmother come to me house and ask for me, and she say me do this girl so and so (that ah hold down the girl) and she grandmother said ah should not ah hold down the girl, ah should ah hold down me mother, and she started to curse. I told her I never hold down the girl; the same day, 21.5.66, ah went back there at the girl’s home and she said that ah hold she hand but I never choke she neck.

“I sex she before, but not on that Saturday. And me and she were close friends for past two years.”

At the trial, the appellant said from the dock: “I rely on my statement which I gave to the police. That statement is true. Nothing more”.

The grounds of appeal which merited consideration, put shortly, were:
1. That the learned trial judge erred in law in his direction to the jury on the question of the probative value of the appellant’s statement to the police which
(a) Tended to remove from them the issue of whether the accused could be found ‘not guilty’ on the indictment.
(b) Conveyed to them that the girl‘s evidence was so strengthened by parts of that statement that they would have no choice but to find him guilty, if they accepted those parts.

Allowing the appeal, Justice of Appeal Luckhoo added,
“In this case, we find that certain directions invited the jury to give a probative value to portions of the appellant’s statement beyond their capacity. That may have made all the difference to the jury’s verdict, and so we were constrained to allow the appeal.”