Courtney Lawes v R

• Jurisdiction: Jamaica
• Judge: PHILLIPS JA
• Judgment Date: 10 November 2011
• Neutral Citation: JM 2011 CA 106
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 150/2008
• Date: 10 November 2011

[2011] JMCA Crim 55

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MRS JUSTICE HARRIS JA

THE HON MISS JUSTICE PHILLIPS JA

SUPREME COURT CRIMINAL APPEAL NO 150/2008

COURTNEY LAWES

and

R

Gayle Nelson for the applicant

The Crown was not represented

CRIMINAL LAW - Abduction - Rape - Leave to appeal - Mis-identity by witness - Unfair trial - Lack of evidence - Improper police procedures - Miscarriage of justice

PHILLIPS JA

1 At a trial in the Circuit Court held in Kingston before Straw J and a jury, between 13 and 21 November 2008, the applicant was convicted of the offences of abduction (count 1) and rape (count 2) of the complainant. He was sentenced to six years imprisonment at hard labour on count one and 10 years imprisonment at hard labour on count two. Both sentences were ordered to run concurrently.

2 On 16 August 2010, the applicant's application for leave to appeal against conviction and sentence was refused by a single judge of this court, and the application was therefore renewed before us. On 14 March 2011, having heard arguments, we granted the application. The hearing of the application was treated as the hearing of the appeal which was allowed. We quashed the convictions, set aside the sentences, and entered a judgment and verdict of acquittal. We promised to give our reasons for that decision and do so now.

The case for the prosecution

3 The prosecution called six witnesses namely the complainant, the complainant's boyfriend, Nathan Thompson, Sergeant Lorenzo Morant, Constable Cheydene Longmore and Corporal Peter Lewis.

4 The charges arose out of an incident which is said to have occurred on 1 March 2006 at about 10:40 pm when the complainant boarded a white Hiace bus, supposedly driven by the applicant, at Three Miles in Kingston which was en route to Spanish Town. The complainant looked at the driver of the bus as he was facing her and talking to a man who was standing at the bus stop with her. When she boarded the bus she was the only passenger and she sat in the front passenger seat. She was able to and did observe the applicant for about 20 seconds. It was the first time that she was seeing him. On the journey, the driver stopped at a stall across from the Ferry Police Station for about two minutes and the complainant put her head outside the bus and while the right side of the driver was facing her, she disclosed that she scanned him from head to toe for approximately 35 seconds. She had already become fearful at that point, and wanted to get a good look at the driver in case anything happened to her, which she declared she told him, when he asked her why she was looking at him so intently. It was her evidence that in addition to the street lights, there was a light in the stall and a light just outside the stall.

5 After the driver re-entered the bus he continued driving until he came to the Portmore stoplight but, instead of heading straight to Spanish Town, he turned left onto a back road from which one could access Lakes Pen and Spanish Town Road, went into a bushy area and drove for about half a mile. He then disembarked from the bus, locked the door with the key from outside the bus, went to the complainant's side and managed to pull her from the bus by her legs and, while she struggled, he climbed up on top of her, put his mouth on her neck as if he was going to bite her. Having pulled her from the bus he had sexual intercourse with her. She recalled that during the struggle she could see the driver's face as it was about seven inches from her and there was some glare from the lights of the bus.

6 After he had sexual intercourse with her, he released her and she walked from Burke Road to Young Street, where she boarded a taxi, and then called her boyfriend. He testified that he had been with the complainant earlier that night and had followed her to the bus stop and left her there. An hour later she called him on the phone crying telling him that she had been raped. He later met her at the Spanish Town Police Station and comforted her there.

7 On 10 April 2006, an identification parade was conducted at the Hunts Bay Police Station by Sergeant Lorenzo Morant. The applicant was placed in the line of men on the parade and in her testimony, she stated that there were eight men on the identification parade and she was instructed to walk along the line of men to see if she could identify her assailant. There was one man at number seven who was holding down his head and when she requested the officers to ask him to hold his head up, she immediately identified the applicant as the man who she asserted had raped her.

8 Sergeant Morant gave evidence about the conduct of the parade. He indicated that the applicant had an attorney Mr Hamilton representing him. Although he stated that there were nine men on the parade, his evidence was otherwise consistent with that of the complainant. He maintained that the complainant had been kept out of sight and hearing of the parade, on the day of the parade, before it was held, and he gave instructions for the applicant to be taken from the Portmore Police Station to the Hunt's Bay Police Station in the early morning at about 4:00 a.m., to minimize any risk of him being exposed.

9 In cross-examination, the complainant admitted that on or about 17 March 2006, before she attended the identification parade, she accompanied her aunt and mother to the Spanish Town Police Station. The purpose of her visit to the station was not disclosed and, she denied seeing the applicant there. Additionally, she also went to the Portmore Police Station also with her aunt and mother, and saw the police bring a man dressed in a bus driver's uniform into the station. She agreed that this man was the applicant. She made no report to the police at the Portmore Police Station that she had seen the man who she said had abducted and raped her.

10 The complainant had been challenged with regard to certain evidence given at the trial which the defence endeavoured to point out was inconsistent with positions adopted by her previously. The conflicts to which complaints were directed are as follows:

• (1) that the driver did not turn off the lights of the vehicle when he drove the bus into the bushy area; in her statement to the police she had said that he had turned off the light, and as she denied this, the relevant portion of her statement was put in evidence as exhibit 1;

• (2) that after she was let off the bus she went to the back of the bus and wrote off the licence number and remembered it readily; in her earlier statement at the preliminary inquiry in Spanish Town she had indicated that although she ‘took it off’ she did not remember it, as it had been some time ago - she denied this at trial and that aspect of her deposition was tendered in evidence as exhibit 2;

• (3) that the bus which had picked her up on that day was ‘not tinted’; in her statement at the preliminary inquiry, she had said that the bus was tinted, and as this too was denied at trial that aspect of the deposition was also put in evidence as exhibit 3.

11 The owner of the bus Mr Nathan Thompson gave evidence that the bus was tinted and, that the bus” route was between Spanish Town and Mandeville. He told the court that he did not know of the bus being driven by the applicant ‘to town’. The system was that the applicant would bring the bus to his home each night, at the latest 10:00 p.m. and then the applicant would be dropped off at the bus park to make his way home. The bus would then be taken to the bus park the next morning and handed over to the applicant. It was his evidence that the bus came in on 1 March but he could not say when, although he did say that he had seen it on 2 March 2006 parked at his home.

The case for the defence

12 At the trial, the applicant's defence was an alibi. He gave an unsworn statement saying that he was not the driver of the bus which picked up the complainant and even if that bus picked up the complainant, he was not the driver as he had been elsewhere.

13 His position was consistent with that of Mr Thompson, that he had been employed to operate a Hiace bus between Spanish Town and Mandeville, and he confirmed the arrangements for the daily operation of the bus. He was paid a weekly salary by Mr Thompson to operate the bus. It was his evidence that he ‘never drive that bus on any occasion at all to town’, and that Mr Thompson was a very strict boss.

14 The applicant admitted that on the night of 1 March 2006, he drove the bus, however, in support of his alibi, he stated that on that night he finished driving at 8:30 p.m. and he had driven to a gas station to get the bus washed. After that he had returned the bus to Mr Thompson's house and taken a taxi so that he could spend the night at the house of his ‘baby mother’ in Bog Walk. He indicated that he particularly remembered the events of the 1 March 2006 as the following day was his wife's birthday.

15 On the morning of 2 March 2006, the applicant met Mr Thompson at the bus park and received the bus in keeping with their arrangement. However, after he entered the bus a police officer approached him and asked if he was the driver of the bus and requested that he report to the Spanish Town Police Station. At the station, he spoke to an officer who remembered him as a ‘country man’ (who drove the Spanish Town to Mandeville route) and who remarked ‘Is caan yu is not yu’.

16 While at the Spanish Town Police Station, the applicant said that he saw three women ‘two elderly ladies with big body and one slim body’. He was asked if he was the driver that had just entered the police station and when he identified himself as such, he noticed that the three women were staring at him. Ten minutes later he was handcuffed, placed in a police car and taken to the...