Rape convict saw freed verdicts of Buggery against him as inconsistent
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IN 2000, the Guyana Court of Appeal reacting to rape accused Ally’s allegation that the

George Barclay

verdict of the jury was inconsistent in that the jury

Incomprehensibly convicted him for the offence of rape and acquitted him of the offence 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 on one transaction.
That Appellate Court constituted by Chancellor Cecil Kennard, Justice Lennox Perry and Justice Guya Persaud Held:

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.
In the present case, the verdicts were so inconsistent as to call for interference by an Appellate Court. Any reasonable jury which 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.

Judgment for the State.
Appeal dismissed, conviction and sentence affirmed.
K. Ramjattan for the Appellant.
Y. Cummings, Deputy DPP for the State.
Chancellor Kennard who delivered the judgment said: The Appellant was convicted at the Berbice Assizes on the 5th November, 1996 for the offence of rape allegedly committed on a woman on the 16th September, 1995 at D’Edward Village, West Coast, Berbice. He was sentenced to a term of imprisonment of 16 years for the said offence.

He has appealed his conviction to this court 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.

As can be noted from the ground of appeal, the Appellant was also indicted for the offences of buggery, robbery with violence and attempted murder committed on the victim and in respect of which he was found not guilty by the jury.
Before dealing with the ground of appeal it is necessary to refer to the evidence on which the State relied for a conviction. The victim lives at D’Edward Village, West Coast, Berbice.

On the 16th September, 1995 at about 2.15 p.m. she went to her backyard in order to burn some leaves there. She was then 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 and as a result she was then lying on her back. She then observed the Appellant, who was about two feet from her on his knees and unbuttoning the fly of his trousers.

The Appellant then forcibly had sexual intercourse with her after which dust got into her eyes and 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 rape her. 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. 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 he (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 round with me and I did not know anything more. I regain consciousness at the New Amsterdam Hospital the next day.”

The victim was examined by Dr. Raghunauth at the New Amsterdam Hospital at about 9.15 a.m. on the 16th September, 1995. He had testified inter alia:
“I found that she had 2 cm sutured wound on the right side of the head. The right temporal region was depressed. The right side of the face was grossly swollen and had haematome. The eye lids had haematome and both eyes were black and blue. There were crepitus-grating sensation as if one had a fracture haematome to the lower lip.

There were multiple abrasions to the anterior chest and there was sub-conjunctival haemorrhage in both eyes i.e. blood shots. There were extensive bruises in the opening (orifice) of the vagina. The posterior aspect had a tear and this was a sign that there was forceful penetration – fresh blood seen oozing.

The depression to the head means that the bone was depressed. This would be consistent with the victim’s head being hit against a hard object. The injury to the vagina was caused by forceful entry consistent with forceful sex.

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