Evan Morrison v R
| Jurisdiction | Jamaica |
| Judge | MORRISON JA |
| Judgment Date | 03 June 2011 |
| Neutral Citation | JM 2011 CA 53 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO. 71/2009 |
| Date | 03 June 2011 |
[2011] JMCA Crim 23
JAMAICA
IN THE COURT OF APPEAL
THE HON. MR JUSTICE HARRISON JA
THE HON. MR JUSTICE MORRISON JA
THE HON. MISS JUSTICE PHILLIPS JA
SUPREME COURT CRIMINAL APPEAL NO. 71/2009
Dr Randolph Williams for the appellant
Miss Kathy - Ann Pyke and Mrs Paula-Rosanne Archer-Hall for the Crown
CRIMINAL LAW - Rape - Identification evidence - Character evidence
This is an appeal from conviction and sentence for the offence of rape in the St Ann Circuit Court, before Donald McIntosh J and a jury, on 5 June 2009. The appellant was sentenced to imprisonment for 15 years at hard labour. The appeal comes before us pursuant to leave granted by the learned single judge of appeal on 17 August 2010.
When the appeal was called on for hearing on 1 November 2010, Dr Randolph Williams for the appellant sought and was granted permission to argue three supplemental grounds of appeal in substitution for the grounds originally filed by the appellant himself. The supplemental grounds give rise to two issues, having to do, firstly, with the adequacy of the trial judge's directions as to the appellant's good character and, secondly, the adequacy and accuracy of his directions on the evidence of identification (including the conduct of the identification parade).
The case for the prosecution
The appellant pleaded not guilty to an indictment charging him with rape, the particulars of which were that, on 1 July 2002, he had sexual intercourse with the complainant without her consent. The complainant, who was 19 years of age at the time of the alleged offence, was a deaf-mute and had been so from birth. Her evidence at the trial was facilitated by Mr Joseph Edwards, a vocational instructor and interpreter, with specialised training in and over 20 years experience as a sign language interpreter. The complainant lived with her parents and her brother at Eltham in the parish of St Ann and in 2002 she was on the verge of graduating from a special school for the deaf and dumb. The appellant, who resided in Ocho Rios, is a tailor.
The complainant's evidence was that on 1 July 2002, at about 6:30 p.m., she was on her way home, after having visited her sister, who lived within walking distance of her home in Eltham. On the way, she became aware that she was being followed by a man, who quickly caught up with her, grabbed her by the hand and forced her into a nearby house, the door to which he closed and locked with a key. Once inside the house, the man indicated that he wanted to have sex with her and ordered her to take off her clothes. She refused and, after a struggle, he forced her onto a small bed that was in the room in which they were, somehow got her clothes off her, put on a condom and had sexual intercourse with her without her consent. Afterwards, the complainant testified, ‘Blood was on the bed sheet, blood was on the bed and on my panty, also on my jeans and my pants’, and the appellant laughingly commented to her that her ‘vagina was tight’. The complainant said that, while the man was having sex with her, she had been able to observe his face. ‘Maybe’, she said, ‘it could be more than 10 minutes, but I saw his face for a long time’. Inside the house itself it was dark, she said, but there was a light on the road outside that shone inside the house. Her recollection was that, in addition to a small bed, there were a sewing machine and a refrigerator in the room to which she had been taken.
Asked in examination in chief whether she had ever seen her attacker before that day, the complainant's first answer was, ‘No, first time I see him’. She later said, however, also in examination in chief, that she knew his face from having seen him on the road many times and that he had talked to her before, indicating a wish to marry her. Later still in her examination in chief, the complainant qualified this last answer by saying that she had in fact seen the man only once before 1 July 2002 and that on that occasion he had wanted to talk to her, but that she ‘just ignore him’.
Hardly surprisingly, this matter was further explored by Dr Williams (who had also appeared for the appellant at the trial) in his cross examination of the complainant, when her attention was drawn to the statement that she had given to the police, also through an interpreter (Miss Millburn Simpson), on 8 July 2002. Having identified the statement as hers, the following exchange then took place between counsel and the complainant:
‘Q. Did you tell Miss Simpson, I saw a man in a yard wearing a white shirt and black jeans. It was the first time I was seeing this man. Did you tell Miss Simpson that?
A. Yes, I remember that.
Q. And when you told her that, that was true?
A. First time.’
Counsel for the Crown, for her part, naturally felt obliged to return to the matter in re-examination, asking the complainant whether she had seen the man before, ‘yes or no?’, to which her reply was, ‘Yes, I have seen him before’.
After her ordeal was over and she had been let out of the house by her attacker, the complainant went directly to her aunt's house and reported to her what had happened. Her aunt then took her home, where a report was made to the complainant's father. Taking the complainant with him, the complainant's father immediately went by car in search of her attacker and was directed by her to a house, ‘a couple minutes drive’ away, where she pointed out the appellant sitting on a stone. Confronted by the complainant's father with the question, ‘What dat yuh do man?’, the appellant's reply was ‘Weh mi do, weh mi do, weh mi do?’, and then he ran away. The complainant's father then took the complainant to her sister's home, left her and, when he returned to the spot where he had seen the appellant earlier, he was nowhere to be seen. Later that same evening, the complainant was taken by her aunt to the Ocho Rios Police Station, then to the St Ann's Bay Police Station and finally to the St Ann's Bay Hospital, where she was seen by a doctor and examined.
On the following day, 2 July 2002, a report having been made to him by telephone by the complainant's father while he was on duty at the Ocho Rios Police Station, Detective Sergeant Kirk Nicholls went with other police officers to Eltham District to a house to which he had been given directions by the complainant's father. There, looking through a glass window, he saw the appellant, who had been known to him previously as “Briggy”, inside the house. He shouted out to him, ‘police’ and asked him to open the door, whereupon the appellant immediately ‘bend down and went under a bed’. Gaining entry to the house forcibly through a side door, Sergeant Nicholls and party then entered the room where the appellant had been seen, ordered him from under the bed, cautioned him and told him of the report which had been received against him. The appellant's response was, ‘My youth, mi caan inna dem thing deh. If mi woman hear bout it, mi life mash up. Let mi goh mek mi gwaan’. (Asked by the judge if he had noticed anything else apart from the bed, in particular a refrigerator or a stove, in the room in which the appellant was found, Sergeant Nicholls' response was that he could not recall.) The appellant was then taken from the house and placed in a police car outside the house, at which point he was seen and pointed out by the complainant to her father, both of them having arrived on the scene just at that point, as the man who had raped her the day before.
Just over two weeks later, on 18 July 2002, the complainant attended an identification parade at the Ocho Rios Police Station, where she pointed out the appellant as her attacker, eliciting from him the response, ‘I am no raper. I got set up’. Sergeant Whitcliff Edwards, who conducted the parade, told the court that, although an interpreter was not present at the parade, by agreement between the police officers who conducted the parade and the appellant's attorney-at-law (Mr Robert Brown), questions were posed to the complainant by writing them down on a sheet of paper and they were then responded to by her in the same manner. At first, all the questions that were intended to be asked were written down on a single sheet of paper but, after consultation with Mr Brown, this method was abandoned in favour of each question being posed to the complainant in writing and answered by her in writing, before the next question was asked and answered in the same way. Woman Corporal Haley assisted the sergeant in this process. According to Sergeant Edwards, neither the appellant nor Mr Brown raised any objections to the conduct of the parade and the appellant in due course signed the identification parade form when requested to do so. Asked specifically in cross examination whether he had heard Mr Brown say ‘that Miss Haley had shown the witness the accused man’, Sergeant Edwards answer was that he did not recall.
Later that same day, the appellant was formally charged with the offence of rape and cautioned, to which his response was, ‘Mi nuh rape her’.
The defence
An unsuccessful submission of no case to answer having been made on his behalf, the appellant opted to give sworn evidence, in which he denied pulling the complainant off the road in Eltham into his house on 1 July 2002 and there forcing her to have sexual intercourse with him. He denied that the bed in his house was small, describing his bed as a ‘queen size’ bed, or that he had either a sewing machine or a refrigerator in the room which he occupied. While he admitted that he had known Sergeant Nicholls ‘for years’ and that he was known by the name ‘Briggy’, he denied that when the police came to his house on 2 July 2002, he had hidden under his bed. On the appellant's account, after Sergeant Nicholls had identified himself as a police officer...
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