Caniere Laplante v R
| Jurisdiction | Jamaica |
| Judge | Fraser JA |
| Judgment Date | 13 November 2020 |
| Neutral Citation | JM 2020 CA 139 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 1/2017 |
| Date | 13 November 2020 |
[2020] JMCA Crim 43
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Mr Justice Fraser JA
THE HON Miss Justice Simmons JA
SUPREME COURT CRIMINAL APPEAL NO 1/2017
Ms Melrose Reid for the applicant
Ms Kathy-Ann Pyke and Okeeto DaSilva for the Crown
On 14 October 2016, the applicant, Caneire LaPlante, was convicted in the Saint James Circuit Court, for the rape of the complainant, CL, on 26 March 2016. He was sentenced on 18 November 2016 to serve 15 years' imprisonment. His application for leave to appeal his conviction and sentence was refused by a single judge of appeal on 24 December 2018. He renewed his application before the court.
At the hearing of the renewed application, counsel for the applicant was granted leave to abandon three of the original six grounds of appeal filed and to add two supplemental grounds to the remaining three. Counsel was then granted permission to argue those five grounds of appeal namely:
“i) The learned trial judge erred in not requesting an amendment to the indictment of Rape to that of Incest.
ii) The learned trial judge failed to adequately sum up the case in such a manner to show the jury the full picture of the Defendant's case, so that the jury could analyse the case and see that the Complainant used personal vendetta/revenge to remove the Applicant out of her life, resulting in his conviction.
iii) Personal vendetta
iv) Miscarriage of justice
v) The sentence was manifestly excessive.”
On 6 November 2020 we made the following orders:
“i) The application for leave to appeal conviction is refused.
ii) The application for leave to appeal against sentence is granted.
iii) The hearing of the application is treated as the hearing of the appeal.
iv) The sentence of 15 years' imprisonment is set aside. Substituted therefor is a sentence of 15 years' imprisonment, with a specification that the appellant should serve a period of 10 years before becoming eligible to be considered for parole.
v) The sentence shall be reckoned to run from 18 November 2016.”
We promised then to put our reasons in writing. We now do so.
The prosecution's case was that the complainant had been living in Jamaica with the applicant, who was accepted to be her father, since sometime in 2015. On 26 March 2016, at about 5:00 pm, she was at their home when he arrived there. At his request, she let him in through the back door. He said he came to kill her. She asked if she did something wrong. He said he did not want to talk to her. He showed her a plastic bag and said it contained a gun. He then asked her for sex and began trying to take off her clothes and fight her. She resisted him and he left and called three men to come help him. Three men, none of whom she had ever seen before, came and held her down on a bed in the front room. The applicant then inserted his penis into her vagina without her consent. He ejaculated on her leg. He told the men, “thank you very much, next time”. The men left. The next morning the applicant asked his daughter for sex again. She refused. She said she was going to church. He asked her to buy condoms.
She took a taxi to the home of a male friend of the applicant in Montego Bay. He was not there, but his girlfriend Ava Kelly was. She told Ms Kelly that she had been raped. Ms Kelly took her to the Anchovy Police Station and eventually to the Mount Salem Police Station, where she made a report to the Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA) office there. Following this report, investigations commenced into a case of incest and illegal possession of firearm against the applicant.
On 3 April 2016, a CISOCA officer went to the Montego Bay Police Station Lock Up and charged the applicant, who was in custody there, with the offences of incest and illegal possession of firearm. However, the applicant was subsequently arraigned for the sole offence of rape.
Mr LaPlante gave sworn evidence that he was Haitian, but had lived in Jamaica for years. He said the complainant, who is his daughter, was born in Jamaica in 1999 to a Haitian mother. The complainant left Jamaica when she was one year old to live in Haiti with her mother. She returned to Jamaica in 2015. He had taken her from Haiti to break up a relationship she had with a married man, of which he disapproved. He had told her to stop talking to the man and encouraged her to fast for 21 days to break up the relationship, but it continued.
He got married in Jamaica on 13 March 2016 and his wife returned to the United States on 24 March 2016. He said that, on 26 March 2016, when he realised the complainant was still communicating with the married man, he told her he was going to send her back to Haiti. He asked her to pack her clothes and on the same day she left with her clothes and did not return. He denied having sexual intercourse with the complainant and maintained that the reason for her report was that he had said he intended to send her back to Haiti. He indicated he went to report her absence to the police on 7 April 2016, but was arrested, based on the report she had made.
In written submissions, counsel for the applicant advanced that the learned trial judge (LTJ), having heard the evidence that the complainant is the daughter of the applicant, should have had the indictment amended to the offence of incest instead of rape. She having failed so to do, the submission contended that this court should so amend it. Counsel cited section 6(1) of the Indictments Act; sections 20 and 21 of the Criminal Justice Administration Act; section 24 (1) and (2) of the Judicature (Appellate Jurisdiction) Act; sections 3(1), 3(2), 6(1), 7(1) and 7(4) of the Sexual Offences Act (SOA); The Sentencing Guidelines for use by Judges of the Supreme Court of Jamaica and the Parish Courts, December 2017; and the case of Leonard Warren v R [2015] JMCA Crim 10. The main reason for this submission was that, unlike rape, incest does not carry a mandatory minimum sentence. Therefore, counsel was of the view that the defendant could benefit from a reduction in sentence, in the event the charge was amended and the conviction was sustained.
After contemplating certain queries raised by the court at the start of her oral submissions, counsel quite rightly did not pursue this ground and counsel for the Crown was not called upon to respond to it. As a result, this court will briefly outline the bases on which the court agrees that there is no merit in this ground.
As outlined in the written submissions of the Crown, section 94 of the Constitution of Jamaica (the Constitution) vests power in the Director of Public Prosecutions to institute charges and protects the office holder from control by any authority in the exercise of that power (see Desmond Grant and Others v Director of Public Prosecutions and Another [1981] 3 WLR 352 cited by the Crown in written submissions).
Pursuant to section 6(1) of the Indictments Act and section 20 of the Criminal Justice Administration Act the court has power to amend a defective indictment (see Melanie Tapper and Winston McKenzie, (unreported), Court of Appeal, Jamaica, Resident Magistrates Criminal Appeal No 28/2007, judgment delivered 27 February 2009, and R v Hugh O'Connor (1978) 16 JLR 269 cited by the Crown in its written submissions). There is, however, no basis to amend an indictment which is not defective. Even if the indictment in this case was defective, which it was not, the course proposed by counsel for the applicant should not be countenanced. While in an appropriate case a court may inquire whether an amendment to an indictment should be contemplated, and if necessary invite submissions on the point, it is not for the court as impartial arbiter to “request an amendment”.
Of vital importance is the fact that, except in rare cases of private prosecutions, under the Constitution and at common law, it is the Crown which has the responsibility to indict for offences made out on the facts as alleged. Under section 2(2) of the Incest (Punishment) Act, now repealed by the SOA, it was immaterial if the carnal knowledge was had with the consent of the female person. However, pursuant to section 7(1) of the SOA, the willingness of the parties to the act of sexual intercourse, is now an ingredient of the offence. The allegation that significant force was used in the commission of the offence without the consent of the complainant, would have clearly taken this offence outside the contemplation of section 7(1) of the SOA. The allegation was manifestly one of forcible rape.
Finally, the relationship between the complainant and the applicant could not have been proven through the evidence of either party, as that would have offended the rule against hearsay. There is no indication that the Crown was in a position to proffer, at the trial, admissible evidence of the paternity of the applicant in relation to the complainant. Considering all of these factors, it is manifest that the appropriate charge was laid against the applicant, which was proven to the satisfaction of the jury. It was for these reasons that this court was satisfied that there was no merit to this ground of appeal.
Grounds (ii), (iii) and (iv) — The learned trial judge failed to adequately sum up the case in such a manner to show the jury the full picture of the Defendant's case, so that the jury could analyse the case and see that the Complainant used personal vendetta/revenge to remove the Applicant out of her life, resulting in his conviction; The...
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