Monday’s acquittal of Wesley Carlos Payne, called “Piggy,” who had been on trial for the rape of a nurse in a ward at the Wismar Hospital in 2008, points to a seeming, continuous and alarming lack of quality investigation and prosecution. This is compounded by the fact that because of a backlog in the judicial system, cases take years to be heard in the High Court; the instant one took just over eight years.
The phrase ‘justice delayed is justice denied’ is often bandied about, but regardless of how clichéd it becomes, it is mostly true in rape cases, the reason being that rape is a crime of power. It is a pernicious act that damages the psyche of the survivor. It may result in that person separating emotion from the rest of the mind as kind of a defence mechanism. No person who has experienced the kind of hell being raped can induce should have to wait years and years for justice. And while it will not help with healing, knowing their attackers are locked away can bring some modicum of comfort to rape survivors.
Unfortunately, however, successful rape prosecutions have always been and continue to be elusive in Guyana. Gathering and preserving evidence—and not only in rape cases—have long been a bane of the Guyana Police Force. Add to this mix green prosecutors, who may only have been assigned to a particular case when it came to trial and you have a recipe for acquittal and for the survivor/complainant feeling defeated and wondering whether reporting the crime and giving evidence in court—acts which require a tremendous amount of courage—were worth it after all. In addition, the length of time that passes between a prima facie case being made out and the High Court trial has seen complainants choosing to walk away rather than give evidence and be cross-examined as these can open old wounds.
In the case referred to above, the accused was able to walk free after a 12-member jury returned a unanimous not-guilty verdict because he was able to create reasonable doubt in the minds of the jurors.
The man who forced himself into the hospital’s casualty ward on the night of September 10, 2008, where two nurses were on duty overlooking two patients, wore no shirt, had his face covered, but his eyes exposed. He raped and robbed one of the nurses and robbed the other, and though they were unable to see his face, they both heard his voice as he had given them several commands. They testified that they heard the same voice when the accused spoke. No credence seemed to have been given to this, even though it is a fact that the trauma of the experience would have made the man’s voice unforgettable. This point should have been highlighted and underlined by the prosecuting team, with the citing of examples from medical and legal sources.
Much store seemed to have been placed on some dark marks the accused had on his chest, which both nurses would have clearly seen given that he was shirtless. However, the accused, who was unrepresented by counsel, was able to argue, convincingly it seems, that many other men had black spots on their chests which appeared to resemble sores that had dried up. The accused claimed, too, that he had a tattoo on his chest, which the nurses would have been sure to have seen if he had attacked them. Neither of them had seen it and the police officer who would have arrested the accused years ago was also adamant that it had not been there at the time.
Since the most compelling evidence that could be presented in such a case—the rape kit test results—was clearly not a part of this trial, nor, it seemed, was a rape kit part of the initial investigation, the least the police could have done, based on the nurses’ statement, was to have taken a photograph of the accused’s chest right after he was arrested for identification and evidential purposes. Not only was this not done, but it was the accused, who in leading his defence, requested that the court be made privy to his prison records.
The accused had been remanded to prison following his arraignment, but was subsequently granted bail. However, his bail was revoked and he was he was returned to prison, after he was convicted of other unrelated crimes. He had finished serving time two years ago and remained in prison awaiting trial for the rape charge. It seemed that no attempt was made to investigate whether the accused’s inking could have been done during the period he was out on bail. Instead, the former investigator who testified, posited that the accused might have had the tattoo done in prison. But this was just a suggestion made under cross-examination.
It had been determined by the Chambers of the Director of Public Prosecutions back in 2008 that sufficient evidence existed to bring a charge of rape against the accused. A preliminary inquiry had found that a prima facie case was made out. Eight years later, what was evident was that the prosecution with whom the burden of proof rested may simply have read the case file and done no further work. If that is not a travesty of justice, then what is?
