Beres Douglas v R

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 28 September 2015
• Neutral Citation: JM 2015 CA 94
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 64/2011
• Court: Court of Appeal (Jamaica)
• Date: 28 September 2015

Beres Douglas

and

R

[2015] JMCA Crim 20

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CRIMINAL APPEAL NO 64/2011

JAMAICA

IN THE COURT OF APPEAL

CRIMINAL LAW - Carnal abuse - Fair hearing - Trial in Counsel's absence - Miscarriage of justice

Alando Terrelonge and Miss

Mrs Sharon Milwood-Moore , Deputy Director of Public Prosecutions for the Crown

Phillips JA

1 The appellant was tried in the St Catherine Circuit Court on 20, 21 and 22 June 2011 before Edwards J (Ag) (as she then was) on an indictment containing three counts of carnal abuse to which he pleaded not guilty.

2 By virtue of a circumstance which was beyond his control, the appellant was unrepresented for substantially the entire duration of the trial.

3 The Crown called three witnesses in support of these counts: the complainant (KM), her mother (Ms MH) and Constable Shellyann Watson. The appellant said nothing in his defence and called no witnesses. He was found not guilty on counts one and two but guilty on count three and on 8 July 2011 he was sentenced to four years imprisonment at hard labour. His application for leave to appeal having been granted by a single judge of this court, the appellant challenged his conviction and sentence on the broad grounds that: (i) his trial without legal representation deprived him of his constitutional right to a fair trial; (ii) the verdicts of not guilty on counts one and two were inconsistent with the verdict of guilty on count three; and (iii) the sentence imposed by the learned trial judge was manifestly excessive.

Pre-trial background

4 Counsel on record for the appellant was Mr Alando Terrelonge. On the 20 June 2011 when the trial was set to commence, Mr Terrelonge had asked another counsel, Mr Courtney Maxwell, to hold for him because he had two matters before the Gun Court in Kingston. Mr Maxwell in an affidavit dated 3 August 2011 deponed that he was advised and he verily believed that both Crown Counsel, Ms A Austin and Mr Terrelonge had agreed that there would have been an adjournment in the matter to a date in July 2011, because of Mr Terrelonge's difficulty and the fact that Crown Counsel wanted to obtain an additional statement. Mr Maxwell further deponed that he had informed the court that he was not prepared to proceed in the trial as he had not been briefed by Mr Terrelonge. However, Edwards J (Ag) decided to proceed with the matter, pointing out that KM was living overseas, that the matter was set for trial as a priority matter and that the Practice Direction dated 11 September 2002 called for counsel being instructed by another counsel to be fully briefed to appear on his/her behalf and to proceed with the matter. As a consequence, Mr Maxwell participated in the jury selection and also took notes in KM's examination in chief in Mr Terrelonge's absence.

Trial background

5 The appellant pleaded not guilty to the indictment charging him with three counts of carnal abuse and the Crown called KM as its first witness. The evidence led before the court was that the appellant had lived in the same community with KM for some time. He first spoke to her in late November 2008 when he said ‘ Little girl, you know seh mi love you .’ Thereafter, the appellant (who was 56 years old at the time) had sexual intercourse with KM three times while she was 12 years old and living with CH (her uncle) in the parish of Saint Catherine.

6 The first incident occurred on a day in December 2008. After coming home from school at about 6:00 pm, KM went outside her uncle's house to use the toilet when she saw the appellant who she called “Gage” in the bushes beside the toilet wearing a black shirt. He called her saying ‘ Psst come here ’. She went over to him, he started to take off his pants and brief and he put a condom on his penis. He told her to lie down on a piece of sponge that was on the ground and she complied. He then took off her shorts and underwear and had sex with her. She was crying and told him to stop, he complied and gave her $200.00 and told her not to tell anyone. KM then put on her clothes, went home and told no one because he had an angry look on his face after intercourse and she was afraid.

7 The testimony in relation to the second count was that on 28 January 2009, KM came home from school at about 6:00 pm, changed her school uniform and went to the same outside toilet. When she came out of the toilet, the appellant called her, she went over to him and he started taking off his clothes. At that time he was wearing a black shirt and black pants. He then placed a condom on his penis told her to lay on a piece of sponge, took off her shorts and underwear and then he had sex with her. She started crying and told him to stop, he complied and gave her $200.00 and told her that he loved her and she was to tell no one. She put on her clothes, went home and told no one because she was afraid he might do something to her.

8 KM's testimony in relation to count three was that, on 2 February 2009, she came home from school at about 6:00 pm, changed her school uniform and went to the same outside toilet. The appellant called her, she went to him and he took off his clothes. He was wearing a blue shirt and black pants. The appellant also told her to lie on a piece of sponge, he took off her shorts and underwear and had sex with her. KM told the appellant to stop and he did not comply. She started to push and hit him and he stopped. After stopping he told her that he did not take any money with him because he was not sure he would see her. KM then pulled up her clothes and went home. Upon reaching home she saw her uncle and spoke to him. The matter was reported to the Old Harbour Police and she was subsequently taken to be examined by a doctor.

9 At the end of KM's examination-in-chief the matter was adjourned until 21 June 2011. On that date when the court resumed, Mr Terrelonge was present but told the court that he could not properly defend the appellant because he felt that the appellant was denied the benefit of his advice when the trial began in his absence. Mr Terrelonge further stated that the initiation of the trial process in his absence, denied him the opportunity to examine KM's composure, object to jurors and object to certain aspects of KM's testimony that had been led. Mr Terrelonge also denied sending Mr Maxwell to hold on his behalf and said that he had only asked counsel to give the court a date since he had already agreed to an adjournment with Crown Counsel. Having agreed to an adjournment with Crown Counsel he was most surprised that the matter had started in his absence. Mr Terrelonge in giving a brief history of the matter stated that he was recently assigned to this case and the date on which the adjournment was sought was only the second trial date.

10 Edwards J refused to release Mr Terrelonge from the case because it had been set for priority and the date sent by Mr Terrelonge was not convenient. She also pointed out that KM was now living overseas and would also be inconvenienced by an adjournment. She was of the view that Mr Terrelonge's objection was without merit, since Mr Maxwell had been given an opportunity to read statements, speak to the appellant and he also ably participated in the jury selection process and in the examination-in-chief. The learned judge made a general statement that she had a problem with attorneys who undertook legal aid assignments and then failed to attend court. She castigated counsel generally for not giving the same attention to matters in which they had been privately retained as against those in which they had been retained pursuant to the legal aid regime. Mr Terrelonge took great exception to those statements particularly if the learned judge was addressing those comments to him personally. Consequently, despite Edwards J's reluctance to release Mr Terrelonge from the matter, he nonetheless excused himself and took no further part therein.

11 In balancing the appellant's right to counsel with, inter alia, the fact that a jury was already empanelled in the matter and the complainant was now living overseas, Edwards J decided to continue the trial in counsel's absence and the accused was forced to represent himself. The learned trial judge promised to assist him as he had been abandoned by counsel and throughout, she assisted the appellant in his cross-examination of KM in which he basically denied having sex with KM; displayed ignorance when it came to certain aspects of her testimony and suggested to her that she was lying.

12 The second Crown witness was Ms MH, KM's mother. She testified that her daughter was born on 19 August 1996 and that at the time of the alleged incident she attended a high school in the parish of Saint Catherine in grade seven. She further testified that on 3 February 2003 her brother, CH told her something and she called KM on her phone. She then visited KM's school where she spoke to the guidance counselor and the principal and later made a report to the police. Ms MH also testified that she knew the appellant and had seen him twice in her yard. She was not cross-examined by the appellant.

13 The final Crown witness was Constable Watson. She testified that on 3 February 2009, KM and Ms MH made a report to her. Based on the report she commenced investigations into a case of carnal abuse against the appellant. She caused KM to be medically examined and took statements from KM and Ms MH. Thereafter, she made numerous attempts to find the appellant but was unsuccessful. He was arrested and charged on 18 January 2010 and when cautioned he said ‘A lie dem a tell pan mi.’ The appellant did not cross-examine Constable Watson and thereafter the Crown closed its case.

14 At the close of the case for the prosecution Edwards J pointed out...