The Sexual Offence Act is legally and seriously flawed

Apr 03, 2016 Letters

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Dear Editor,
Permit me to comment on Section 69(1) of the SEXUAL OFFENCES ACT No. 7 of 2010 which states that:
“No corroboration of the evidence of the complainant in the sworn of unsworn evidence of a child shall be required for a conviction of an offence under this Act, and the Judge shall not direct the Jury that it is unsafe to find the accused guilty in the absence of corroboration”.
In England, Judges have discretion to issue a corroboration warning in a sexual offence case. A trial Judge in England has discretion to warn the Jury of the dangers of convicting a defendant on the basis of uncorroborated evidence of the victim. While one may argue that the continued availability of corroborative warning in sexual offence trials is problematic and is a potential source of injustice for victims, one can also argue that it is also problematic when Judges do not have discretion to direct the Jury that it is unsafe to find the accused guilty in the absence of corroboration. I dare say that the law in Guyana is this area, is in need of fresh consideration.
In the case of Guyana, the Judges have no discretion to issue a corroboration warning in a sexual offence involving a child, and the fate of the accused/or a defendant lies in the hands of the Jury. While Section 69(1) of the Sexual Offence Act in Guyana is a source of justice for the victims, one may argue that it is necessary in Guyana, to reform the current approach to corroboration in a matter which better accommodates the rights of both victims and defendants. In doing so there must be guidance as to where such a warning is appropriate or the form it should take.
The present Sexual Offences Act in Guyana denies defendants the opportunity of cross examining witnesses in the Magistrate Court. We have what is called “PAPER COMMITTAL” where the statements of the various witnesses are read by the Prosecutor in the Magistrate Court and upon completion Counsel (if there is one) MAY BE ASKED IF HE/SHE WISHES TO MAKE A SUBMISSION. In most cases Counsel Responds in the negative and the accused is informed that he is to attend a trial in the High Court at the next sitting of the Assizes. Section 43 of the Sexual Offence  Act reads “where a person is charged with an offence under this Act, there shall be no preliminary Inquiry and instead a paper committal shall be held”
As a result of the Paper Committal, the matter is thrown over the High Court, where the victims are crossed examined by a Counsel (if there is one), but the Judge at the trial shall not direct that it is unsafe to find the accused guilty in the absence of corroboration. The preliminary justification for discretionary warning by Judges on corroboration are the alleged ease with which sexual allegations are made in Guyana, coupled with the difficulties defendants face with the paper committals in the Magistrate Court. Section 7(1) of the Criminal Law (rape) Act 1990 in England provides that:-
“…Where at the trial on indictment a person charged with an offence of a sexual nature, evidence is given by the person in relation to whom the offence is alleged to have been committed and by reason only of the nature of the charge, there would, but for this section , be a requirement that the jury be given a warning about the danger of convicting the person on the uncorroborated evidence of that person; it shall be for the Judge to decide in his discretion, having regard to all the evidence given, whether the jury should be given the warning”.
Why trust trial Judge in the High Court of Guyana, who presides over a trial of a sexual nature, listen to a witness who lied, perhaps bear a grudge against an accused, or has a motive for bringing an allegation against an accused, be denied the right to give a warning to the Jury? In Guyana a Jury decides, after listening to the facts of the case, whether an accused is guilty or not. In most cases a Jury in Guyana listens to the victim and the accused and makes a decision whether the accused is guilty or not. How does a Jury decide, for example, whether touching or kissing took place that led an accused to be charged for a sexual activity with a child? Are they familiar with what is credible evidence, previous inconsistent statements in relation to the nature of the charge? Do they (the Jury) look for supporting evidence?
In Guyana, it would be very difficult under the present Sexual Offences Act, and especially under Section 69(1) for an accused person to have a fair trial. Most Sexual Offences occur in places where there is unlikely to be eyewitnesses testimony to verify that the incident did occur. Disadvantages are posed not only for the victims but also for the Defendants.
While Judges would comment on the evidence in sexual offences trials, which they have a right to do, one cannot say what weight those comments may have on members of the jury, who are easily swayed by their own emotions after hearing the evidence. There needs to be reform of the Sexual Offences Act in Guyana in order that Justice maybe served to both the victims and the Defendants.
Lawrence Harris
Attorney-at-Law

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