Kenyatha Brown v R
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 28 May 2018 |
| Neutral Citation | JM 2018 CA 70 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 23/2014 |
| Year | 2018 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA Crim 24
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Miss Justice Phillips JA
THE HON Mr Justice Brooks JA
SUPREME COURT CRIMINAL APPEAL NO 23/2014
Dwight Reece for the appellant
Adley Duncan for the Crown
This is an appeal against the appellant's conviction for rape, and the sentence of 12 years imprisonment imposed on him, in the Westmoreland Circuit Court on 13 February 2014, after a trial before E Brown J and a jury. The appellant filed an application for leave to appeal against his conviction and sentence on 24 April 2014. The grounds stated were: (a) unfair trial; (b) incompetence of counsel; (c) insufficient evidence to warrant a conviction; and (d) miscarriage of justice. The notice of application indicated that further grounds would be filed by counsel.
The virtual complainant alleged that on 30 May 2011, the appellant, who was at the time her elder sister's boyfriend, held her down with a ratchet knife pressed to her throat, stripped her below the waist, and proceeded to have sexual intercourse with her without her consent in his car. It was also alleged that the virtual complainant sent a text message to a friend and to Miss Denise Lewin, a peer counsellor, in relation to the alleged rape. Under cross-examination, the complainant admitted that she had visited the appellant's home alone on one occasion, when she had “loose out [sic] his hair” and “picked a bump from his face”. Additionally, she stated in cross-examination, there had been a previous incident in which she alleged that the appellant had assaulted her in his home, but she had not previously reported that assault to the police. The complainant and her mother reported the alleged rape to the Lucea Police Station two days later, and the complainant was directed to the Noel Holmes Hospital, where she was examined by a medical doctor in the presence of a police officer.
Miss Denise Lewin testified about a text message that she had received from the complainant regarding the alleged rape. That was on the evening of the day of the alleged rape. Miss Karen Hudson, the complainant's mother, testified that the appellant had apologised to her for raping the complainant and asked for consideration of his children. Dr Aung Naing, a medical officer practising at the Lucea Hospital who examined the complainant, had testified that, on examination, there was evidence which was consistent with signs of vaginal penetration, having occurred within the timeframe stated by the complainant, which was within 48 hours before the examination.
The appellant gave evidence that he had consensual sexual intercourse with the complainant and that, in fact, he had been gentle with her, and had made her comfortable. He also denied placing a knife to her throat. He testified that the complainant had lied about what had occurred, because he had promised to give her $6,000.00 but he had not been able to keep that promise. He said that the following day she asked him “what happen [sic] to the money”, and he had promised to give it to her the day after that. Her response was that he should “make sure”, at which point she “hiss her teeth and walk off”. He denied telling the complainant's mother that he had raped her daughter and apologising to her, but said that he had told her to ask her daughter to tell her exactly what had happened.
Miss Gardner, the complainant's sister, gave evidence in support of the appellant. She stated that she had not sent the complainant to the appellant's home to “pull out his hair”. She stated that she had received a text message from her sister stating that the appellant had raped her. She was very upset about that information and confronted the appellant over the phone. He did not admit to her that he had raped her sister.
The single judge of appeal who reviewed the appellant's application for leave to appeal against conviction and sentence, refused it and the application was therefore renewed before the court. The application came on for hearing on 6 and 9 June 2016, when it was adjourned for the full transcript of the notes of evidence of the trial to be produced. Subsequent to receipt of the transcript, counsel for the appellant, Mr Dwight Reece, filed the affidavit of Henry Charles Johnson, the attorney who had represented the appellant at trial, attempting to address the ground of appeal namely, “(b) Incompetence of Counsel”.
Mr Johnson's evidence was that he was a senior attorney and trial lawyer of the firm of H Charles Johnson & Co. He stated that he had been retained by the appellant and had duly conducted his trial on 12 and 13 February 2014. He said the matter of the appellant's defence had been discussed thoroughly with him prior to the trial. He stated further that, consistent with the strategy arranged for the trial, the appellant gave sworn testimony setting out his case, which was that he had had consensual sex with the virtual complainant, with whom he had developed a social friendship over the period that they knew each other. Mr Johnson referred to the notes of evidence and the cross-examination of the complainant and the appellant. He insisted that the appellant's case “was clearly put before the court at trial”.
Mr Johnson stated further that the trial judge had “failed or erred on most of the occasions to accept the evidence in favour of the appellant and interfered or interrupted unnecessarily during the trial”. This approach he said can result in a miscarriage of justice and, in his view, had done so in the instant case. He stated further, that apart from the error of interference in the trial, “the [j]udge's tone was always unfavourable to the [a]ppellant when he had to accept as truthful areas in the evidence that came [over] as favourable to the [a]ppellant”.
The matter came up again before the court (Morrison P, Phillips and P Williams JJA) on 17 January 2018. On that date, Mr Reece filed an affidavit sworn to by him on 16 January 2018, wherein he referred to the fact that, subsequent to the hearing date on 9 June 2016, as the attorney-at-law representing the appellant, he had contacted Mr Johnson, and requested a copy of any statement of the appellant which contained his instructions at trial.
In response to this request, Mr Reece obtained a copy of the following undated statement “purportedly signed by a Kenyatta Brown”, from Mr Johnson's office:
“STATEMENT
Tel: 865–5794
Kenyatta Brown States
I am 32 years old residing at Cousin Cove, Hanover. Father of 3 children reside with son eleven years. [sic]
Taxi operator owner of vehicle. [sic] Father lives in the parish of Hanover, mother lives in England.
The sister of my girlfriend claimed that I raped her and that is not true.
I did not assault her I had sex with her and she asked for four thousand dollars which I promised to give her. I did not give her the money same time and she kept calling me for the money
I was putting the money together and she could not wait, so she claimed that I rape her.
Signed
Kenyatta Brown”
On 17 January 2018, having drawn the court's attention to the letter of instructions of “Kenyatta Brown”, Mr Reece indicated to the court that he intended to rely on one ground only, namely that of incompetence of counsel. The court granted the appellant leave to appeal and fixed the matter for hearing in the week commencing 26 February 2018.
Counsel for the appellant submitted that the appellant had not received a fair trial as counsel appearing for him in the court below, had been less than helpful in advancing his defence, which was one of consensual intercourse. At the conclusion of the Crown's case, counsel submitted the sole challenge to the evidence of rape, was a mere denial of rape. It was never put to the virtual complainant that she had consented to having sex with the appellant. Counsel had also not put the appellant's defence to the complainant, pursuant to his instructions, that he had sex with the complainant and that she had asked for money, which not having been delivered, resulted in the report of rape. The matter, counsel submitted, was one of credibility, that of the complainant against that of the appellant. Counsel not having properly put the appellant's defence of to the complainant, deprived the jury of the complainant's reaction to those suggestions being made to her.
Additionally, the detailed nature of the appellant's account would have been heard from him for the first time in his examination-in-chief and in his cross-examination, and the jurors would have wondered why they had not heard any of this being put to the complainant previously, and whether that was so because it was a recent fabrication and lacked sincerity. So, instead of these details, the jury was only left with the mere denial of the offence of rape, as against a case of consensual sex being engaged in; that moneys were promised; and that the claim of rape was as a result of non-payment or non-compliance with the promise of payment; and that this was so although these were the appellant's only instructions to counsel.
In addition to that, Mr Reece submitted that Mr Johnson had introduced prejudicial material into evidence, namely the complaint of a previous assault by the appellant on the complainant. The complainant agreed that there had been an allegation of assault, but no other evidence was adduced, so that at the end of her testimony, one did not know what the assault was, or any details pertaining to it. Counsel submitted that on page 42 of the transcript of the evidence, the learned trial judge had attempted to stop Mr Johnson from pursuing that line of cross-examination, but he would not be deterred from proceeding as he thought it could benefit the appellant, as in spite of the assault, the complainant had still attended an event with him. But,...
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