Legister (Anthony) and Lincoln Fray v R

• Jurisdiction: Jamaica
• Judge: COOKE. J.A. (Ag):
• Judgment Date: 20 December 2000
• Neutral Citation: JM 2000 CA 52
• Judgment citation (vLex): [2000] 12 JJC 2005
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2000

IN THE COURT OF APPEAL

COR.

THE HON. MR. JUSTICE FORTE,P THE HON. MR. JUSTICE WALKER J.A THE HON. MR. JUSTICE COOKE, J.A. (Ag)

ANTHONY LEGISTER & LINCOLN FRAY

vs

R

Frank Phipps, Q.C. Sylvester Morris

Brian Sykes, Acting Senior Deputy Director of Public Prosecutions Tricia Hutchinson

CRIMINAL LAW - Rape - Uncorroborated evidence

COOKE. J.A. (Ag):

1 Anthony Legister and Lincoln Fray were both convicted of rape in the St. James Circuit Court. They have now applied for leave to challenge their respective convictions and sentences. We heard arguments, granted leave to appeal convictions and treated the applications as the hearing of the appeals. The circumstances of the offence may be stated shortly.

2 In the afternoon of the 5 ^th August,1997 the complainant, a school girl and Bryan Clarke set off from Mt. Salem to go to Porto Bello. The former was interested in seeing a spring at Porto Bello which she had heard about. At the spring the couple were surrounded by a group of men one of whom had a machete. Clarke was beaten on his head with a machete and he ran away. She was beaten and subsequently raped by four men, two of whom she swore were the applicants.

3 A complaint which is common to both applicants is that although the learned trial judge's general directions on corroboration were unassailable, as indeed they were, he did not tell the jury that in the instant case there was no corroboration. Mr. Phipps, Q.C. in the development of his submission directed the court to a particular passage in the summing up which he argued could have misled the jury into erroneously utilizing this aspect of the evidence as corroborative. Reference will be made to this passage in due course.

4 Before reviewing the relevant parts of the summation to determine if this complaint is meritorious some observations on the relevant law would not be inappropriate. In our jurisdiction it is incumbent on trial judges, in all cases where the issue of corroboration arises either by law or practice, to indicate to the jury the presence or absence of it (see R v Deon Noble SCCA No. 121/96 (unreported) delivered July 31, 1997). Where there is no corroboration a simple straightforward statement to that effect is all that is required. This does not seem to be an onerous imposition. In R. v Goddard and Others [1962] 3 All E.R. 582, Lord Parker C. J. in delivering the judgment of the court at p. 586 said:

"Quite clearly, it is idle to give that direction (i.e. the danger of acting on uncorroborated evidence) simpliciter in a case where in fact there is no evidence capable of amounting to corroboration, because the very fact that the direction is given would leave the jury to infer that there was some evidence capable of amounting to corroboration, if they looked for it. Equally, in a case, as in many sexual cases, where there is a danger that the jury will treat as corroboration something which is incapable of being corroboration, there must be a duty on the judge to explain to the jury what is not corroboration as for example, a complaint made by the complainant."

5 See also R. v Anslow [1962] Crim. L.R 101; R. v Fisher [1965] 1 All E.R 677.

6 In this case the learned trial judge did direct the jury that the recent complaint was not corroboration. Eric James v R. 12 JLR 237 is a decision of the Privy Council. It is a Jamaican case. In delivering the Opinion of the Board, Viscount Dilhorne at p. 239 said:

"There was in this case no evidence capable of amounting to corroboration of Miss Hall's evidence that she had been raped, and raped by the accused. The judge should have told the jury that. His failure to do so was a serious misdirection, so serious as to make it inevitable that the conviction should be quashed.

Not only did the judge fail so to direct the jury. He went on to tell them wrongly that the medical evidence could amount to corroboration and having said that, he said that two questions had to be considered, was it without her consent and was he the man? Despite what he had said earlier about corroboration being particularly necessary where the issue is consent or no consent, he failed to direct the jury as to the need for corroboration on both these questions. Indeed the passage cited above suggests that the jury might well have thought that if they accepted the medical evidence they were entitled to disregard the warning he had given against the danger of acting on uncorroborated evidence.

One further criticism must be made of the summing up. Although the judge in the course of his summing up reminded the jury very fully of the evidence that had been given, he failed to relate that to the issues in the case which the jury had to determine. In particular he failed to stress the need for care on questions of identity and to put the evidence in relation to that together in one part of his summing up for the consideration of the jury.

Miss Hall said that she only had a slight glance at the man's face when the light was turned on. No doubt she got a better view of him as it became light in the morning. She described him to the detective as a man with a black complexion, medium built, 5ft 8 or 9 inches tall, with black croppy hair, a description which the detective said fitted the appellant and "fitted almost everybody". She said she recognised the accused the next day when he was two chains away and she identified the trousers taken from the appellant's room as those her assailant had worn".

7 So in this case the misdirection of which Viscount Dilhorne speaks was compounded by other fundamental inadequacies in the summing-up. Hence, the inevitability of the conviction being quashed. Where there is evidence capable of amounting to corroboration, "it is for the judge to say whether a particular piece of evidence, if accepted is capable of being corroboration and then for the jury to act on it or not as they think right" per Lord Goddard LCJ in R. v Sims [1946] All E.R. 697 at p. 703. See also Stanley John Reeves [1979] 68 Cr. App. R 381.

8 There will now be a review of the summation. On page 8 of the transcript this is recorded:

(a) "Unless you are convinced of the truth of her evidence that the offence of rape was committed against her the accused person or persons cannot properly be convicted.

Similarly, if you believe that she was raped but not convinced of the truth of her evidence that it was the accused or the accused persons who raped her they or he might not be properly convicted."

9 This was a case in which the critical issue was the correctness of the identification of the complainant. This is what on page 11 the learned trial judge said:

(b) "As far as identification is concerned that rest (sic) solely, as the case for the prosecution, on your acceptance of Tanisha Spence as a witness of truth. It depends entirely on what you make of her, what you make of her evidence and whether or not you think that in the circumstances, as outlined by her in her evidence, she had sufficient time to see the accused persons. Whether or not anything was interfering with her observation of them, what the lighting was at the time and whether she could have recognized them afterwards".

10 Again at page 24 the transcript reveals:

(c) "Now, Detective Sirjue is not responsible for the identification of the witness...