The recent murder of nine-year-old Sade Stoby has highlighted the need for DNA testing in the investigation of sexual and other crimes. This is something Minister of Human Services & Social Security, Priya Manickchand is pressing for in her consultation white paper, ‘Stamp it Out!’
The only witness to a crime of this nature is usually the perpetrator, and while the police may be able to get a confession statement from a suspect, such a statement can always be challenged in court on the grounds that the accused may have been tortured before confessing. However, if DNA testing were used to bolster evidence in criminal cases the police would be better equipped to bring the perpetrator to justice.
Minister Manickchand told Stabroek News there needed to be legislation in place which would allow for the use of DNA test results in criminal cases, because at present the law did not allow for that to be used as evidence. “So you can have the most sophisticated lab in the country but yet results from DNA testing cannot be used in court as evidence; it would not be admissible,” the minister explained.
There is at least one private laboratory in Guyana that undertakes DNA testing.
The minister expressed shock and sorrow at the brutal manner in which the young child had died and said the incident only made stronger the case for the proposals in the document, ‘Stamp it Out!’ to ensure that victims of sexual crimes received justice.
Stabroek News understands that DNA testing is also included in the Security Sector Reform Act which will be funded by the British government and which has already been passed by parliament.
In the ministry’s ‘Stamp it Out!’ document it was pointed out that although swabs were sometimes taken during medical examinations, forensic evidence had never been used in a sexual offence prosecution in Guyana. “DNA evidence can make a vast difference in establishing a strong case against an offender, especially in most cases the only other evidence will be the victim’s word,” the paper said. It promised that under the Citizen Security Programme, which is in the pipeline, a forensic laboratory would be built and training provided for its staff.
It was stated that training would also be provided for medical staff in taking forensic evidence during medical examinations, and for police on the procedures for transporting and storing the evidence. And where the evidence is gathered during a medical examination at a sexual assault referral centre, but the victim does not want to carry on with a legal case, the forensic evidence can still be used anonymously to assist the police in building pictures of serial rapists, the document said.
Should the document become a reality and legislation be implemented the entire process of prosecuting sexual offences would become more effective and it would be more difficult for the perpetrators of such offences to slip through the justice system.
The paper noted that in 2005 a study found that about 1% of rapes reported to the police resulted in convictions.
The document touched on evidence by child victims and it was noted that children often disclosed what happened to them in fragments and would not always include all events in the sequence they happened in the first report. “The defence often challenges this as meaning that the child’s story is made up or inconsistent,” the paper said. As a result training for police officers would cover working with child victims, including how to take statements from child witnesses.
It was pointed out that having to repeat their story several times caused children to lose motivation to tell the story in full. “Better integration of services will allow Joint Investigative Interviews to be held in cases of child abuse, as conducted by the Child Protection Unit in the UK.” The process in the UK sees a joint interview being held involving both a social worker and a specially trained police officer, rather than making the child go through the process of questioning twice. The police would then decide on criminal charges (in consultation with the social worker), and the social worker would make decisions relating to the child’s welfare, for example, whether to take any protective action.
The paper is seeking to get rid of the preliminary inquiry when prosecuting sexual cases. “The preliminary inquiry (PI) is one of the main causes of low conviction rates for sexual offences,” the paper asserted. It was pointed out that once the accused had been charged the PI was supposed to be a short initial hearing before a magistrate to decide whether there was a “sufficient case” to go to the high court for trial. “The threshold is supposed to be very low; if a reasonable jury could possibly convict on the evidence, the case must go to trial,” it was stated. It noted that the magistrate could not make any decisions about the facts of the case, so the credibility of witnesses could not be judged. It therefore meant that in other countries the vast majority of cases would get past the PI stage.
In the UK, according to the paper, before PIs (as they are conducted in Guyana) were abolished, 90% of the cases went to the high court for trial.
It was noted that in Guyana the oral PI stage frequently lasted for several years and was usually conducted like a full trial, with all witnesses called and intensively cross-examined by the defence. “The whole trial is then played out again in the High Court. In 2000-2004, more than three-quarters of sexual offence cases did not make it through the preliminary inquiry process to even begin the High Court trial,” the paper said.
It was noted that cases were not falling away at the PI stage in Guyana because they were weak, but because of the long delays owing to witnesses moving away or losing touch, and memories fading; while the victim, repeatedly called to court only for the case to be adjourned, or intensively crossed-examined knowing that the whole process would be repeated at the high court, may decide that s/he could not continue with the case. It was noted that where the victim was a child, the trauma of the process was even greater.
According to the document, moving to paper committals instead of oral PIs would address all of these issues and free up the magistrate’s court to deal with other matters thereby reducing the backlog of cases. “These cost and efficiency savings have led to reforms in other countries,” it argued.
The legislation is expected to introduce a system of paper committals for sexual offence cases. The paper committal process would see the prosecution giving a bundle of written evidence to the defence seven days before the hearing was to be held before a magistrate. Only the prosecutor and the defendant and/or the defendant’s lawyer need attend the hearing. The magistrate would check that the defendant was legally represented, and that no “no case” submission had been made. In the vast majority of cases both of these questions should be settled and the magistrate would simply stamp the file to go to the high court for trial. In this case the magistrate would not read or assess the evidence at all, because in the vast majority of cases, the prosecution and defence should be able to agree that there was a sufficient case to go to trial.
“It is only in a small percentage of cases that the defence could reasonably argue that the prosecution has not made out a sufficient case, as it is such a low threshold.”
Mandatory charge policy
According to the document, the police charged the offender in only half of the rape cases reported in 2000-2004. It said while good work was being done by some police officers, there was a widespread belief that there were high levels of false allegations, while the rejection of domestic violence cases as “private matters” was still a serious problem. Training would help, the paper said.
It is proposed that the legislation should include an obligation on the police to record and inv
estigate every allegation of sexual violence. It said that the final decision to discontinue investigation would rest with the Director of Public Prosecutions (DPP), as had been proposed in South Africa. “We believe this will greatly improve the investigation and conviction rate, shifting the focus from testing the credibility of victims or sending them home to ‘work it out’ to evidence gathering and case building.”
It was disclosed that concerns had been raised by police and social workers about families withdrawing from cases of child sex abuse. It is proposed that in the case of child victims, a mandatory charge policy would be necessary to make sure that children were protected, and this would be included in the National Policy Guidelines. The welfare of the child was always the first priority, so the guidelines would also encompass a requirement to see the written opinion of the social worker on the case as to whether prosecution was in the child’s best interest. Guidance would also have to be given on how a case could be built if the social worker advised that the child should not have to testify in court.