Damion Bell v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brown, J.A.
• Judgment Date: 27 March 2026
• Neutral Citation: JM 2026 CA 22
• Year: 2026
• Docket Number: Suit No.: Criminal Appeal COA2022PCCR00006

Damion Bell

and

R

JM 2026 CA 22

Brown, J.A.

Suit No.: Criminal Appeal COA2022PCCR00006

Court of Appeal

Appearances:

Patrick Peterkin for the appellant.

Jeremy Taylor KC and Ms. Loriann Tugwell for the Crown.

Brown, J.A.

1 The appellant was convicted in the Corporate Area Parish Court (Criminal Division) of the offence of indecent assault, on an information which charged him with the offence of grievous sexual assault (‘GSA’). He was arraigned on 19 October 2016. However, it appears that evidence was first taken on 3 March 2017, and the trial continued on various dates, culminating with his sentence on 7 June 2018. On that date, the learned judge sentenced the appellant to 12 months' imprisonment but suspended the sentence for 24 months.

2 The appellant, dissatisfied with the verdict and sentence, filed a notice of appeal on 18 June 2018 in the Corporate Area Parish Court (Criminal Division) that contained two grounds of appeal. That original notice and grounds of appeal was subsequently superseded by an amended notice and grounds of appeal that was filed in this court on 6 March 2023.

3 The matter duly came before us for hearing on 8 March 2023. After hearing the arguments, we made the following orders:

At the time of making the orders, we committed to putting our reasons in writing. Our reasons are, of necessity, preceded by a brief factual background.

• 1. The appeal is allowed.

• 2. The conviction is quashed and the sentence is set aside.

• 3. Judgment and verdict of acquittal is entered.

BACKGROUND

(a) CASE FOR THE PROSECUTION

4 The complainant, RG, who was 12 years old at the time of the incident, was living with her mother and the appellant, her stepfather. When the case came on for trial, RG's mother and the appellant had become husband and wife. The parents of the appellant also shared occupancy of the dwelling house with the couple and RG. RG had her own bedroom. This bedroom did not have a door but was separated from the rest of the house by a curtain.

5 RG testified that on a day in December 2014, she was involved in an altercation with a male student at school, which left her with an injury to one of her eyes. That same night, after retiring to bed, she woke up crying, apparently from pain associated with the injury. She saw the appellant in her room. He enquired of her if she wanted medication. She said no. The appellant left RG's bedroom, and she went back to sleep. RG awoke a second time, on this occasion, to feel the appellant's finger inside her vagina. The appellant was then sitting on the edge of her bed, about in the middle.

6 The following morning, while RG's mother was transporting RG to school RG told her what transpired the night before. RG's mother it appears, straight away, returned to the dwelling and confronted the appellant with RG's allegations. The appellant denied the allegations. However, that night, while RG was in her bedroom, her mother and the appellant entered. RG's mother told RG that the appellant wished to apologise to her. The appellant then said it was the devil that made him do it. RG's mother then asked RG if she forgave the appellant. That enquiry elicited no response.

7 However, the issue apparently remained unresolved in RG's mind as, about two days later, RG attempted to report the matter to her father via a telephone call. That effort was thwarted by something RG's mother said to RG, while RG was on the telephone. Sometime after these events RG went to reside with her father. It was after this new living arrangement that RG apprised her father of the event of December 2014, who then involved the police.

(b) CASE FOR THE DEFENCE

8 The appellant made an unsworn statement, the entirety of which is missing from the record of proceedings. In her findings of fact, however, the learned judge made several references to the unsworn statement. From those references, we gleaned that the appellant denied the allegations and asserted that he grew up in a Christian home. He also stated that he was subjected to constant harassment from RG's father, ever since his relationship with RG's mother came to RG's father's knowledge.

9 The appellant's denial was supported by RG's mother. She denied that RG made any report to her about being sexually assaulted by the appellant. She stated that if the appellant had told her something, she would have believed him because he was honest. On the other hand, in cross-examination, she also said that if RG had told her something, she would have believed her.

GROUNDS OF APPEAL

10 Below are the two original grounds of appeal filed at the Corporate Area Parish Court (Criminal Division) on 18 June 2018:

• “1. That the decision of the Learned Parish Judge was against the weight of the evidence.

• 2. That the evidence led by the Crown was not sufficient to warrant a conviction.”

11 On 6 March 2023, the appellant filed an amended notice and grounds of appeal at this court and sought the court's permission to argue the following grounds:

• “i. The Learned trial Judge erred in law allowing [sic] the Crown to lead hearsay evidence of a recent complaint when the Crown had not intended to call the said person to give evidence of the recent complaint.

• ii. the Learned Trial Judge erred by misquoting the evidence in her summing up.

• iii. The Learned Trial Judge erred in law by neglecting parts of the evidence which do not support the singular charge in the circumstances where the quality of the evidence was admittedly weak and manifestly unreliable; and

• iv. The Verdict is unreasonable having regard to the evidence.”

THE CROWN'S PRELIMINARY OBJECTION

12 Before the amended notice of appeal was filed, together with amended grounds of appeal, the Crown, on 23 February 2023, filed what was described as a “preliminary objection”. Two principal objections were raised. First, what may compendiously be described as procedural improprieties at the trial. Second, the paucity of the two original grounds of appeal, causing them to run afoul of section 297 of the Judicature (Parish Courts) Act (‘JPCA’). We will discuss the objections in that order.

13 The Crown, in their written submissions, made the following observations in relation to the trial conducted by the learned judge. Firstly, the information (the document containing the particulars of the offence) appeared to be at variance with the heading of the notes of evidence. That is, although both the notes of evidence and the front of the information recited the charge as GSA, “indecent assault” also appeared on the back of the information, but with a line drawn through “indecent assault”. Secondly, while the notes of evidence, at the commencement, recorded the plea as not guilty (to GSA), the learned judge found the appellant guilty of indecent assault. Thirdly, there was a shadow of uncertainty over the verdict as it was unclear whether the learned judge returned that verdict as an alternative to GSA or if the appellant pleaded to the offence of indecent assault.

14 The Crown regarded these observations as benign to innocuous for, they submitted that, in the general scheme of things, the appellant suffered no prejudice. That conclusion had three premises: (a) the elements of both offences are similar, resulting in no change in the evidence relied on by the prosecution; (b) both offences are triable on information within the learned judge's special statutory summary jurisdiction; and (c) the sentence for both offences is the same.

DISCUSSION

15 The Crown's classificatory conclusion of an absence of prejudice to the appellant was another way of saying the trial before the learned judge did not result in any unfairness to the appellant and, as a result, there was no actionable miscarriage of justice. The overarching issue, therefore, was whether the trial for GSA that ended in the return of a verdict of guilty for indecent assault occasioned any unfairness to the appellant.

16 We will first dispose of the incidental objection concerning the striking out of the words “indecent assault” on the back of the information. The first general point is that the description of the offence on the back of an information, which, ideally, should be accurate, is immaterial insofar as informing the defendant of the charge that brought him before the court goes. That is, the substance of the particulars of the offence is required to be stated on the front of the information. The summons which proceeds from the information, laid before the Justice of the Peace, requires only that it states, “shortly the matter of such information and complaint” (see section 2 of the Justices of the Peace Jurisdiction Act, referred to below as the JPJ Act). So that, by analogy with an indictment, the sufficiency of an information is to be judged by (i) a statement of the offence, and (ii) particulars giving reasonable information concerning the nature of the charge. In fact, there is no variance between what is contained on the front of the information and the description on its back. That the words “indecent assault” were struck out left only the words “grievous sexual assault”, which accord with the description on the front of the information.

17 And so, we come to the gravamen of the preliminary objection, the return of a verdict of guilty for indecent assault upon the information that charged GSA. The offence of GSA is a creature of section 4 of the Sexual Offences Act, 2009 (‘the SOA’). The section contemplates the commission of this offence in circumstances where the offender violates the integrity of the body of the victim by (a) penetrating the vagina or anus with any body part other than the penis or an object manipulated by him or her; (b) placing his penis in the mouth of the victim; (c) placing his or her mouth on the vagina, vulva, penis or anus of the victim; (d) causing another person to do any of the acts listed at (a) to (c), all in circumstances where the...