By Latoya Giles
Twenty-eight-year-old rape accused Devon McFarlane was yesterday freed by a jury of seven men and five women, who found him not guilty in proportion eleven to one.
McFarlane called ‘Kang’ was charged with raping a then 26-year-old security guard and mother of three as she walked home on January 11, 2009. She lived at Bare Roots, East Coast Demerara.
The jury deliberated for just over two hours following a summing up of the evidence by Justice Roxanne George-Wiltshire, which lasted for approximately three (3) hours.
Justice George explained certain principles of law to the jury including that of the burden of proof which rests on the prosecution to prove the case beyond reasonable doubt; the inferences to be drawn, inconsistencies and discrepancies and the elements of the offence of rape.
Explaining these elements, the Judge said that the prosecution had to prove that the complainant was female, that her vagina had been penetrated, however slight, by the penis of the accused, that this penetration occurred without her consent and that at the relevant time, it was done by fear, force or fraud.
Most importantly, Justice George said, was whether it was the accused who had committed this horrible act on the complainant.
This case, the Judge pointed out, was based on recognition and identification since the complainant claimed she had known the accused for more than a year and he passed her home twice per week and greeted her; that her husband, a soldier, had invited him to their wedding anniversary celebrations the previous August and that he was married to her husband’s cousin.
However, following the incident, she did not tell her husband that she knew her attacker or mention any of these things related to the accused. Instead, she gave her husband a description of the man who raped her.
The Judge told the jury that they had to determine whether by giving this description the complainant did not know the man who had raped her.
Further, Justice George told the jury that Constable Paul Tirat’s evidence left much to be desired since he apparently suffered a memory lapse as he “could not remember” almost everything in relation to this offence. She observed that Tirat’s evidence highlighted the deficiencies in the police investigations of this matter and although he could not remember almost everything, yet he recalled that the complainant gave a description of her assailant and mentioned that his ‘call name’ was ‘Kang’ when she reported the matter and before the accused was arrested.
However, this was not mentioned by the complainant in her evidence and the judge told the jury they had to decide whether the Police Officer had said this to bolster the case for the complainant against the accused.
Following the verdict, the Judge told McFarlane that he must consider himself fortunate as it was a very difficult case involving recognition and identification and that from the time she read the depositions, she had realized how difficult it was.
The Judge also told McFarlane that he was free to go and must ensure he does not get himself into any more trouble as the Judge observed that his pregnant wife was sitting in the courtroom. McFarlane thanked the Judge and then proceeded to shake the hands of the jurors as they exited the jury box.
McFarlane’s wife had testified on his behalf, mentioning for the first time that he had been at home with her that night and that she would usually breast feed her baby four times per night and she would wake him up on each occasion to “keep her company.”
She blamed his lawyer in the Magistrates’ Court for not allowing her to testify on his behalf there. The woman told the court that she and the accused have three children, aged 4, 3 and 1, and that they could not afford to pay their rent of $7000 per month as he had not worked since October 2008 when he had come out of the interior.
The complainant had testified that she was walking home at about 00:45hrs when McFarlane had rode past her, then he passed her again, after which he waited at a corner in front of her, having used another route to get there. He had held her up with a “dutty, rusty gun,” taken her to an unfinished concrete house where he raped her.
The following morning she reported the incident and took the police back to the unfinished house and pointed out the accused on a nearby bridge.
However, her husband and the accused testified that the police had arrested the accused and his friend and had asked the complainant if she knew either of the men and it was then she had pointed out the accused.
Both men were arrested and placed in the lock-ups and the accused claimed the police had checked his penis since the woman had reported that the man who raped her had beads in his penis.
The accused testified that the police found no beads in his penis. The woman had denied ever telling the police about any beads in the man’s penis and she had said that the only beads she knew about were “beads you put in your hair.”
McFarlane, who had indicated he could hardly read and write, was assigned Attorney Ronald Burch-Smith to represent him while the State’s case was presented by Prosecutor Renita Singh, who was associated with Judith Gildharie-Mursalin.
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