Clarke v R
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA |
| Judgment Date | 31 July 2017 |
| Neutral Citation | JM 2017 CA 28 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 127/2010 |
| Court | Court of Appeal (Jamaica) |
| Date | 31 July 2017 |
[2017] JMCA Crim 31
THE HON Miss Justice Phillips JA
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice Sinclair-Haynes JA
SUPREME COURT CRIMINAL APPEAL NO 127/2010
IN THE COURT OF APPEAL
Criminal Appeal - Leave to appeal — Direction on standard of proof — Treatment of separate counts — Prejudice by inadmissible references — Direction on credibility of prosecution case — Leave to appeal dismissed.
Oswest Senior-Smith for the applicant
Mrs Denise Samuels-Dingwall for the Crown
The applicant was tried in the Portland Circuit Court, before F Williams J (as he then was), sitting with a jury, between 23 and 25 November 2010 on an indictment that charged him with three counts of rape. The particulars were that on three separate occasions, between June 2007 and January 2009, the applicant raped the complainant. On 2 December 2010, he was sentenced to 15 years' imprisonment at hard labour on each count and the sentences were ordered to run concurrently.
The applicant subsequently applied for leave to appeal against his conviction and sentences. He relied on three grounds of appeal under three broad headings: unfair trial; lack of evidence; and miscarriage of justice. His application was considered by a single judge of this court who, in refusing the application, opined that the applicant was “convicted on a pure credibility issue, on what appeared to be strong evidence for the prosecution, after proper directions from the learned trial judge”. The learned single judge further opined that in the circumstances, “the sentence cannot be said to be manifestly excessive”.
The applicant renewed his application before this court. Leave was granted to Mr Senior-Smith, counsel appearing on his behalf, to abandon the original grounds of appeal and to argue four supplemental grounds. The supplemental grounds of appeal have embodied the applicant's complaints concerning the learned trial judge's treatment in his directions to the jury of the following matters: (i) the standard of proof (ii) the deliberation on the separate counts on the indictment; (iii) the jury's approach to the evaluation of the evidence of the applicant and his witnesses; (iv) the evidence of the purported recent complaint; and (v) the credibility of the prosecution's case. The applicant also complains that the jury may have succumbed to “inadvertent pressure” to arrive at their verdict.
In summary, the case presented by the prosecution at trial was as follows: In June 2007, the complainant was living with her mother and the applicant, who was her stepfather, in the parish of Portland. On a day in June 2007, which the complainant could not recall, she was alone at their home during the course of the evening when the applicant came home, pulled her to a bed and proceeded to have sexual intercourse with her, despite her expressed objection to him doing so. Again, in June 2007, on a day, which she also could not recall, the complainant went to a nearby river to bathe when the applicant went there, held her down on a stone and proceeded to have sexual intercourse with her, without her consent. The third incident allegedly occurred in January 2009, on a day the complainant also could not recall. On this occasion, she had gone to the house of the applicant to get something to eat. While there, the applicant held her and took her to a bed where he had sexual intercourse with her, against her will. On 12 February 2009, the complainant spoke to her father and on 17 February 2009, a report was made to the police at the Port Antonio Police Station. The applicant was charged with three counts of rape on 22 July 2009.
The father of the complainant gave evidence. His evidence was ultimately not of any material evidential worth to the prosecution's case as the jury was directed to disregard the part of his evidence that the prosecution had sought to rely on as being a recent complaint. Essentially, in so far as was relevant to the prosecution's case, he spoke to having received a report from the complainant that led to the arrest and charge of the applicant.
The investigating officer, Detective Corporal Karlene McKen, also gave evidence, which also did not put the prosecution's case any higher in so far as the allegations of the commission of the offence are concerned. Her evidence was to the effect that the report against the applicant was made to her at the Port Antonio Police Station that led her to conduct investigations into the allegations. She was not able to locate the applicant for some time but on 14 July 2009, after receiving certain information, she visited the Port Antonio Police Station, where the applicant was pointed out to her. She subsequently arrested and charged him for the three counts of rape. He made no statement upon being cautioned.
The applicant's defence was a complete denial of the allegations made against him. In his sworn testimony, he stated that the complainant was living with his aunt in June 2007, which was nearby his home. He had taken the complainant to his aunt's home because the accommodation he shared with her mother was not adequate. She was therefore not living with him when she claimed the incidents occurred but she would visit his house. He has had to scold the complainant “very diligently” on a number of occasions about her behaviour and on 5 February 2009, he scolded and slapped her for her bad behaviour. After he did so, the complainant told him that she would be going to the police station to report that he was having sexual intercourse with her and “make the police lock [him] up”.
He called two witnesses, his aunt and the mother of the complainant who was his common law spouse at the material time. His aunt's testimony was that the complainant lived with her for about a year and six months. She overheard the complainant telling her (the aunt's) daughter that the applicant had boxed her in her face and that she was going to lock him up. The complainant's mother testified that the complainant was an “out of order child” and that she lived at the applicant's aunt's home at some time during the relevant period. On 5 February 2009, she was present when the applicant boxed the complainant. She heard the complainant say that she was going to tell her father that the applicant had boxed her and the complainant left. She did not hear the complainant say anything else. She denied (in her examination-in-chief) that the complainant had reported to her that the applicant had sexual intercourse with her.
In the end, these witnesses called by the applicant (like the father and the investigating officer called by the prosecution) were not able to add anything of any materiality that could aid in the resolution of the critical issue, that is, whether the applicant had sexual intercourse with the complainant without her consent on the three occasions as alleged. So, the resolution of the material issue in the case clearly revolved around the credibility of only two witnesses, that being, the complainant and the applicant.
The grounds of appeal argued by counsel on the applicant's behalf were as follows:
Ground 1
“The Applicant respectfully lost the protection of the law arising from the gloss that the Learned Trial Judge placed on the standard of proof the jury were obliged to apply.”
Ground 1A
“There was an insufficiency of directions, respectfully, in regard to the issue of:
1. The jury's deliberation on the separate counts of rape and the evidence adduced thereon; and
2. The jury's approach in evaluating the evidence of the [applicant] and his witnesses.”
Ground 2
“The Applicant was irretrievably prejudiced by the inadmissible references to and evidence of purported ‘recent complaint’.”
Ground 3
“The Applicant's prospects of acquittal were denuded by the absence of a more careful set of directions on the credibility of the Prosecution's Case.”
Ground 4
“The jury having elected to receive the Learned Trial Judge's directions during the usual luncheon adjournment may have succumbed to inadvertent pressure to arrive at their verdict.”
Mr Senior-Smith argued on ground one that “the Learned Trial Judge beneficially sought to simplify or explain the meaning and application of the term ‘reasonable doubt’ [and] unwittingly… fell into fatal error as the eventual directions on the requisite proof, required too low a standard thereby resulting in the Applicant suffering the convictions”. He argued that the learned trial judge, in explaining to the jury what is meant by reasonable doubt, had “watered down” the directions as to the extent to which they should be satisfied.
The aspects of the learned trial judge's directions that have generated this disquiet on the part of the applicant are as follows:
“I will point out to you as well that in this case it is not the accused man, Mr. Everton Clarke, who has brought himself here. It is the crown or the prosecution that has brought himself here. It is the Crown or the prosecution that has brought him here and it is for the prosecution to prove their case against him to satisfy you as to his guilt, and in doing so you should bear in mind that he is not required to prove his innocence and the standard to which the prosecution has to satisfy you is what we refer to as beyond reasonable doubt.
It doesn't mean that there cannot be any doubt at all, but if you have a doubt it has to be what we call a reasonable doubt. That is a doubt based on a reason, not a fanciful doubt, not a gut feeling as we call it, but it has to be a doubt based on a reason, having...
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