IN 1966, Krisho an 18-year-old youth of Mahaica Creek who was jailed for three years for raping his 16-year-old girlfriend had his conviction and sentence quashed and set aside on the grounds that the trial judge’s wrongful direction to the jury in relation to corroboration of the girl’s testimony was a fatal error. At the jury trial, at which Krisho was convicted, he had led two defences, one of alibi and the other of consent. The girl’s testimony, which was uncorroborated, had been built on inconsistencies, but despite this, the trial judge directed the jury that they were entitled to use the lie told by the accused in his defence to corroborate  the girl’s testimony. The jury did as asked and convicted the accused who was sentenced to three years imprisonment.  
On appeal, the Court of Appeal, constituted by Chief Justice J A Luckhoo and Justices of Appeal Guya Persaud and Percival Cummings, allowed the appeal and quashed the conviction and sentence.
In his delivery of the main judgment, Chief Justice Luckhoo had said at the time:
“In the instant case, I do not feel that the judge went far enough.  The jury may very well have felt that the mere fact that the appellant had told the police an untruth was in itself corroboration of the prosecutrix‘s evidence, without having regard to the other circumstances of the case.
For this reason alone, I feel it would be unsafe to allow the conviction to stand, and I would therefore allow the appeal and quash the conviction.”
The other judges agreed with the reasons and the conclusion reached and therefore concurred.

The facts of the case disclosed that the appellant, Krisho, who was convicted of raping his one-time girl friend, had been in the habit of visiting her home, and that at some point there had been some talk of marriage between them.  The girl, whose name was Seeranie, testified that at the time the offence was committed, she had shouted thrice for her brother.
                                    
A neighbour as much as admitted that he heard the cry, but said he did not bother to intervene since he felt that there was nothing amiss. The defence, therefore, was consent, but the appellant had told the police that he was working at the time the offence was alleged to have been committed and was not at home.  The defence was conducted on the basis that that statement amounted to an alibi and was a lie.

In directing the jury on corroboration, the trial judge had omitted to tell them to look for corroboration from an independent source. He, however, told them that they could find corroboration in Krisho’s testimony and in the lie told by him (the appellant).

In the latter respect, the judge had told the jury that if they felt that the accused had lied to the police and that he did so out of a sense of guilt, it was for them to say whether that lie in fact corroborated the evidence of the prosecutrix.

On appeal, the Appellate Court held that:

(i) The law requires that corroborative evidence –  whether oral or circumstantial – must come from a source independent  of the prosecutrix;
(ii) Per Persaud and Cummings, JJ A, any omission of the trial judge to tell the jury that they must look for corroboration from an independent source was cured by his direction that they must look for corroboration in R’s evidence;
(iii) It is not sufficient for a trial judge merely to tell the jury that if they find that the accused lied out of a sense of guilt, then that may be corroboration of the prosecutrix’s evidence; [that] he ought to bear the circumstances in mind (and this must include the defence), and must explain to the jury that if they find that an untrue statement is consistent with panic and as well as with guilt, then it is not corroboration;
(iv) Per Luckhoo JA, victim’s  call for her brother was just as consistent with an approved  visit as with a guilty one and R’s evidence was in the circumstances incapable  of providing  corroboration.
 
(v) Per Luckhoo, JA, if a statement made by an accused person is to be used as lie for the purpose of providing corroboration , it must be a demonstrable and unambiguous lie.  The appellant’s statement to the police could have meant “almost anything.” It was, therefore, not a demonstrable lie and was incapable of providing corroboration.

It was on the basis of the above that the appeal was allowed.

At the hearing of the appeal, Senior Counsel Mr Fred Wills appeared for the appellant, while Senior Crown Counsel, Mr  J Gonsalves-Sabola, represented the Crown.

Justice Luckhoo, who, as we earlier established, delivered the main judgment, noted that the appellant was convicted for having carnal knowledge of one Seeranie without her consent on the 27th day of November, 1965, which was contrary to Section 76 of the Criminal Law (Offences) Ordinance, Chapter 10, and was sentenced to three years in prison.    

According to Justice Luckhoo, the victim, an unmarried girl of 16, lived together with her mother, stepfather and brother, Bobby, at a place known as Martin’s Burial Ground, in the Mahaica Creek.

He said that on the day in question, Saturday November 27, 1965, she was alone at home with her baby, when, at about 10 am, the appellant came into the house.  According to her evidence, he “hauled” her out of the hammock, and when she shouted for help,  slapped  her on her face. She again hollered. At this, he dragged her into the bedroom, threw her on the bed and took off her panty. It was at this point that she called for her brother. She shouted out: “Help! Help! Bobby, Bobby! Bobby!” But, oblivious to her cries, he climbed atop her and proceeded to have sexual intercourse with her. He then left.

She, in turn, put on back her panty, checked on her baby, went to the trench, took back off her panty and washed it.  However, although her mother and stepfather, who had been out drinking,  returned home at about 6pm that day, she did not tell them anything until around 8am the following day.  At that time, she said, she was afraid of becoming pregnant and worried that she might get a baby.

According to one Ramdehur, who lived on the opposite bank of the Mahaica Creek, he saw the  appellant enter the said house about 10.30 am that day.  He said that shortly after that, he heard the victim (whose voice he knew) call out: “Bobby! Bobby! Bobby!”  That was the last he heard from her, he said. He said that a little less than half an hour after, he saw the appellant come out of the house, go down the steps, and walk away along a track to the west.  About one minute after, the victim came out of the house and stood on the platform.  Ramdehur said he had seen the appellant several times before sitting on the steps and in the yard of that house, and that on the day in question, people could have seen him where he was standing.  He said he did not go to investigate;  to his mind, he did not feel anything was wrong.

 Doctor Balwant Singh, the Government Bacteriologist and Pathologist, found the presence of spermatoza on the girl’s panties and on her bed sheet.   Her mother told of the complaint made to her the next morning and Detective Constable  Maltay produced a caution statement  made by the appellant on December 1, 1965.

In a statement from the dock, the appellant had said: “I am 18 years of age; I never went to Doreen without her consent. Nothing else; that is all.”

 Among other things, the girl had said that she was to have been married to the accused, but claimed that the marriage had been stopped  by the appellant’s mother because she was pregnant at the time.

The girl had also said that one of the reasons why she told her parents about the incident between herself and the appellant was because she was worried  as she believed she might have gotten a baby.

The appeal was allowed, and the conviction and sentence set aside.