Delgado v R

• Jurisdiction: Jamaica
• Judge: Straw JA
• Judgment Date: 26 September 2017
• Neutral Citation: JM 2017 CA 31
• Docket Number: PARISH COURT CRIMINAL APPEAL NO 2/2017
• Court: Court of Appeal (Jamaica)
• Date: 26 September 2017

[2017] JMCA Crim 34

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Brooks JA

THE HON Mr Justice F Williams JA

THE HON Miss Justice Straw JA (AG)

PARISH COURT CRIMINAL APPEAL NO 2/2017

Elio Delgado

and

R

Norman Godfrey for the appellant

Mrs Sharon Milwood Moore for the Crown

Criminal Appeal - Competent and compellable witness — Competence of wife and mother to give evidence — No case submission — Duplicity — Re-trial.

Straw JA (AG)

1 Mr Elio Delgado (the appellant) was convicted of one count of indecent assault against his stepdaughter. He was sentenced to six months imprisonment at hard labour. He appealed his conviction and sentence on the bases that: (i) his wife, Mrs Antoinette Sinclair-Delgado (who gave evidence against him) was neither competent nor compellable in that regard and so no weight ought to have been placed on her evidence; (ii) the inconsistencies and discrepancies in the evidence were so substantial that he should not have been called upon to answer the allegations against him; and (iii) the indictment charging him was bad for duplicity. He further contended that his conviction ought to be quashed because he was charged under a non-existent section of the Offences Against the Person Act.

2 On 31 July 2017 we allowed the appeal, quashed the conviction, set aside the sentence and ordered a new trial. The matter was returned to the Parish Court for the parish of Manchester for trial before a different parish judge. It was set for mention on 2 August 2017 and the appellant's bail was extended to that date. We promised to give reasons for that decision and this judgment is given in fulfilment of that promise.

Background

3 The appellant was charged on indictment with the offence of indecent assault contrary to section 53 of the Offences Against the Person Act. His trial for the said offence commenced before Her Honour Mrs Desiree C Alleyne, parish judge for the parish of Manchester (parish judge) on 23 January 2014. The prosecution called three witnesses in support of its case: MK (the complainant and the appellant's stepdaughter), Mrs Antoinette Sinclair-Delgado (Mrs Delgado — the appellant's wife and MK's mother) and Detective Constable Charmaine Walters (the investigating officer).

4 MK gave evidence of five instances in which the appellant displayed inappropriate conduct towards her while she was at home in the parish of Manchester. The first incident occurred on an evening in 2005, when she was in grade three and while she was at home alone with the appellant who she calls “Papi”. She testified that the appellant came into her room and said that “he wanted to show me something and he thinks it would be better with the lights off”. MK said “no” and the appellant said “good girl I know no one can touch you and you don't speak out against it”. He thereafter left the room. In another incident, on an evening when the appellant was in grade six, the appellant entered MK's room after she had finished taking off her clothes and grabbed at her multiple times. She had to jump on the bed to evade him.

5 The three instances which directly relate to the offence of indecent assault are as follows:

On this third occasion, MK told her mother who went on the veranda to confront the appellant. The appellant called the Alligator Pond Police Station to say that MK was accusing him of things that he did not do. They all went to the Alligator Pond Police Station and MK later made a report to Constable Arscott.

• 1. One Friday night, the appellant entered the room that MK shared with her brother and tucked in her brother, who was sleeping on a separate bed. The appellant thereafter walked over to the bed where MK was lying down, kissed her on her vagina (although through her clothes), walked out of the room and brushed his teeth. MK testified that she told her mother that “‘Papi’ bend down and kissed me on my vagina through my clothes” but her mother did not say anything and she went back to her room. She indicated that she was 12–13 years old at this time.

• 2. One day when she was in first form at high school and family members and friends were at the house, MK went to the bathroom and on returning from the bathroom, the appellant kissed her on her mouth and pushed his tongue into her mouth.

• 3. One night when they were watching movies with family, the appellant placed his hand around her waist and was moving his hand down towards her vagina.

6 Under cross-examination suggestions were put to MK that she was lying about and fabricating the incidents. She denied these suggestions. She was challenged as to whether she told her mother about what she alleged that the appellant had done to her and whether her mother assisted her while the statement containing a report of these allegations was being taken.

7 Mrs Delgado testified that the appellant is her husband and MK is his stepdaughter. At that stage, Mr Godfrey, counsel for the appellant, objected to her competency as she was still married to the appellant at the time she was giving evidence. The Clerk of the Court responded to say that under the Evidence Act, Mrs Delgado was a competent though not compellable witness. Upon recognizing that the Evidence Act was only applicable to the Sexual Offences Act under which the appellant had not been charged, the Clerk of the Court thereafter sought to amend the indictment but later withdrew his application, based on a submission by Mr Godfrey that the indictment could not be amended since the offence was allegedly committed in 2005 before the Sexual Offences Act was enacted. The parish judge overruled Mr Godfrey's objection and ruled that Mrs Delgado could testify pursuant to common law.

8 Mrs Delgado thereafter testified that sometime in 2010, MK came into her bedroom and told her that “Pappy (referring to [the appellant] came into her bedroom, she was lying on her back, he bent over and kissed her on her vagina”. Mrs Delgado said she said nothing to the appellant because she was shocked. She spoke to him sometime later and told him not to “go near my daughter”. Mrs Delgado also testified that in the summer of 2011 she saw the appellant hug MK and put his hand around her waist and then she saw her daughter, who was about 12 years old at the time, jump up suddenly. When she enquired of MK “what caused you to jump up like that?”, she replied “she felt Pappy's hand slide from her waist to her vagina”. Mrs Delgado said she asked the appellant “why he was sliding his hand down to an inappropriate place on her body”, she state that the appellant “got angry, started quarrelling, took out his cell phone and called Alligator Pond Police Station”. Mrs Delgado testified that she later called the police and made a report and that the parties proceeded to the police station the next day. However, it was not until 2012 that they went to the Centre for Sexual Offences and Child Abuse (CISOCA) where a report was made. Mrs Delgado was not cross-examined.

9 Constable Walters, who is stationed at CISOCA, testified that on 2 August 2012, a report was made to her by MK and Mrs Delgado and she took a statement from MK. On 3 August 2012, she arrested and charged the appellant for indecent assault and when cautioned, he said nothing. She was also not cross-examined.

10 At the close of the prosecution's case, a no case submission was made that was rejected, as the judge found that the appellant had a case to answer. The appellant thereafter rested on his counsel's submissions and so he mounted no defence.

Parish Judge's reasons for judgment

11 In her reasons for judgment, the learned parish judge examined the issue of whether Mrs Delgado was a competent witness. She examined sections 12(1) and (2) of the Evidence Act and stated that based on the fact that Parliament made provisions for instances in which a wife or a husband can testify against the other, it was Parliament's intention to protect children and other victims of sexual abuse. While the learned parish judge acknowledged and accepted the principle at common law that a husband or wife should not testify against each other, she also acknowledged exceptions to that principle as stated in the cases of Leach v Rex [1912] AC 305, Hoskyn v Metropolitan Police Commissioner [1979] AC 474 and Regina v Pitt [1983] QB 25. She made the following finding at paragraph 19 of her reasons for judgment:

“As a result of the above, the Court is of the view that judicial decisions from England support the proposition that in cases of sexual offences committed on children, a wife would be deemed competent to testify against her husband. The Court notes that from 1898 the statute [Criminal Evidence Act] was passed in England giving the wife the competency to testify, in 1912 the Judges in England reiterated that right, and therefore the court finds the argument to be without merit, that some one hundred years later, a wife is not competent to testify against her husband when he is charged at common law for indecently assaulting her child in Jamaica. That statute and the cases thereafter would be a part of Jamaica's common law.”

12 The learned judge thereafter made the following findings:

• “20. The Court observed the demeanour of [MK] and was of the view that she was a witness of truth. She testified that the acts of indecent assault occurred on various dates, from when she was 12 to 13 years old.

• 21. The question by counsel for the [appellant] to [MK] as to whether there was a difference between saying that [the appellant] moved his hand down to her vagina as against he touched her vagina resulted in [MK] saying there was no difference. This court recognizes that the statement was not put into evidence for the court to see the discrepancy if any, and [MK] was not asked in re-examination or otherwise why she said there was no difference. Is it that he moved his hand down to her vagina and touched it? That...