Jermaine Burke v R
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 08 April 2022 |
| Neutral Citation | JM 2022 CA 042 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL 2/2016 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Crim 21
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice Foster Pusey JA
THE HON Miss Justice Simmons JA
SUPREME COURT CRIMINAL APPEAL 2/2016
IN THE COURT OF APPEAL
Kemar Robinson for the applicant
Miss Sophia Thomas for the Crown
On 8 December 2015, following a trial in the circuit court for the parish of Saint Catherine before Graham Allen J (‘the learned trial judge’), Jermaine Burke (‘the applicant’) was convicted for the offence of rape. On 12 January 2016, he was sentenced to 25 years’ imprisonment, with the stipulation that he serve 20 years’ imprisonment before being eligible for parole.
The defence was consent, and the applicant asserted that the complainant's allegation that he had raped her was motivated by jealousy. As such, the central issue at trial was credibility. The prosecution relied on three witnesses: the complainant, her father (‘SB’), and Detective Corporal Andrea Allen. The applicant gave sworn evidence and called one witness; Mr Veibert Burke, his father.
On 18 January 2016, the applicant filed an application to this court for leave to appeal conviction and sentence, on the following grounds:
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(i) Unfair trial;
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(ii) The verdict was unreasonable and was not supported by the evidence;
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(iii) The jury was misdirected; and
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(iv) The sentence is manifestly excessive.
The application, which was considered by a single judge of appeal on 19 April 2018, was refused on the basis that the learned trial judge gave adequate directions on the main issue of credibility, as well as the inconsistencies and discrepancies in the evidence. The single judge found that any concern in relation to the learned trial judge's direction to the jury at pages 28 to 29 of the transcript that “…[their] first duty [was] to arrive at a unanimous verdict.” was mitigated by her directions at page 29. The sentence which was imposed by the court was found to be within the usual range of sentences imposed for the offence of rape.
The applicant has renewed his application before this court, as is his right. After hearing submissions from counsel, the court requested that the parties file written submissions supported by authorities in respect of the issue of honest belief, on or before 1 March 2021. They did so, and the court's decision was reserved as of that date. The delay in the delivery of this judgment is sincerely regretted, and the court apologises for it.
It is not disputed that, on 28 July 2013, the applicant and the complainant were both present at a party in the community of James Mountain, Sligoville in the parish of Saint Catherine. Sometime after the party ended, the applicant and the complainant engaged in sexual intercourse at the home of the applicant. The parties were well-known to each other, having been in a previous sexual relationship.
The evidence of the main witnesses for the prosecution is summarised below.
The complainant's evidence was that, on 27 July 2013, she attended a party in her community of James Mountain, Sligoville where she joined her brother and his girlfriend. Whilst there, she saw the applicant otherwise known to her as ‘Tucker’, whom she had known for more than 10 years. She stated that they had been in a relationship for about seven years prior to the incident. The applicant, she said, asked her to dance with him and she refused.
After the party ended, she left for home in the company of her brother and his girlfriend. The applicant, she said, walked behind them. At a certain point in the journey, the complainant's brother and his girlfriend turned off the road, at which time the applicant began to walk beside the complainant. The applicant was said to have engaged the complainant in conversation during which she told him that she did not wish to be his friend and that she had moved on with her life.
Upon approaching the gate to the applicant's home, he grabbed the complainant's hand and pulled her towards the gate, which resulted in her hitting the side of her head on the said gate. The complainant stated that she resisted and screamed repeatedly for him to let her go. He, however, managed to pull her inside his room and closed the door. They engaged in a tussle and the applicant removed a ratchet knife from his back pocket and used it to cut the two sides of the complainant's shorts. During the tussle, the complainant sustained a cut to her left hand and her middle finger.
The complainant was able to escape to the bathroom and locked herself inside. She began screaming for help from the applicant's brother and father who both lived on the property and was able to get his father's attention. When his father came to the window the complainant told him that the applicant was trying to rape her and she showed him the cut on her finger. The applicant managed to break into the bathroom and went to the window to speak to his father who enquired of him what was taking place. It was the complainant's evidence that his father told him, “[you] can go to prison for this, [you] can go to jail”. He was said to have responded to his father, using indecent language.
The applicant, with the knife in his hand, then pulled the complainant into the room by her blouse, which he later cut with the knife. They wrestled and he pushed her onto his bed, came on top of her, knife in hand, and forced her legs apart. The complainant, whilst crying and screaming for help, told the applicant that she did not want to have sex with him. The applicant held her down by her hands and forcibly had sexual intercourse with her. She pushed him off and told him that she needed to use the bathroom. He refused to let her go into the bathroom and she resorted to urinating on the bedroom floor. He then held her by the neck and started to choke her. At this time, the knife was in his other hand. He then resumed having sexual intercourse with her.
The complainant grabbed the knife from the applicant, ran back into the bathroom and threw the knife through the window. The applicant ran outside and the complainant used a dresser to barricade the room door so as to prevent him from re-entering the room. She then called SB on the telephone and told him that she had been raped by the applicant. She remained in the bathroom and could see when SB arrived at the property with her step-mother, her brother and his girlfriend. The complainant removed the dresser and her brother's girlfriend entered the room and gave her a towel to cover herself.
She explained that she had not tried to open the room door, as the applicant had a knife and she was afraid.
The complainant went to the Sligoville Police Station where she made a report and gave a statement. She then went to the Spanish Town Hospital where she was medically examined.
SB recounted that, on 28 July 2021, he received a phone call from the complainant who told him that she had been raped by the applicant, who he knew as ‘Tucker’. He drove to the applicant's property with his girlfriend and, upon arrival, he saw the applicant outside with a knife in his hand. He stated that the applicant immediately ran towards the back of the house. SB stated that he then looked up, and saw the complainant at the window. She appeared to be naked and was crying for help.
He left and went to the Sligoville Police Station where he made a report that “a young man, Tucker, hold on pon my daughter from the night before”. Whilst at the station, he received a telephone call from his girlfriend advising him that the complainant had been taken out of the house. He then accompanied the police to the applicant's house.
The applicant's defence was that he and the complainant had consensual sexual intercourse and she was lying to the court, as she was jealous of his relationship with his girlfriend. The applicant and his father gave evidence on behalf of the defence.
The applicant's evidence was that, on 28 July 2013, he was at a party in James Mountain, Sligoville, with his brother and friends. Whilst there, he saw the complainant whom he had known for about 13 or 14 years. His evidence was that they had been involved in an intimate relationship for about three to four years. The applicant stated that up to the time of the alleged rape, he and the complainant were still involved in a sexual relationship.
His evidence was that, when he asked the complainant to dance, her response was “No, mi nuh want yuh gal dem si me and yuh”. He reassured her that his ‘woman’ was overseas and the two then danced until the party ended. They left in the company of her brother and his girlfriend. He stated that the complainant's brother and his girlfriend eventually turned off and went in the direction of their home. He and the complainant continued to walk together and engaged in conversation. The applicant recounted that the complainant had said that he was only interested in her now because his girlfriend had returned overseas.
The applicant stated that when they entered his house and went into his room, the complainant questioned him as to why it was so untidy. His response was that his girlfriend had been there a few weeks before and had left a few items behind. He stated that the complainant became upset, reached for a knife that was on the dresser and threatened to destroy his girlfriend's items. It was his evidence that the complainant was jealous of his other intimate relationship.
He and the complainant began to fight, and the complainant received a cut on her finger which bled. He took her to the bathroom to clean the cut. The complainant who was crying, went to the bathroom window and told the applicant's father who was outside, that the applicant had cut her with a...
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