Linford McIntosh v R

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA
• Judgment Date: 28 September 2015
• Neutral Citation: JM 2015 CA 97
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 77/2013
• Court: Court of Appeal (Jamaica)
• Date: 28 September 2015

Linford McIntosh

and

R

[2015] JMCA Crim 26

Before:

The Hon Mr Justice Morrison P (AG)

The Hon Mrs Justice McDonald-Bishop JA

The Hon Ms Paulette Williams JA (AG)

SUPREME COURT CRIMINAL APPEAL NO 77/2013

JAMAICA

IN THE COURT OF APPEAL

Gladstone Wilson for the applicant

Mrs Natalie Ebanks-Miller and Ms Theresa Hanley for the Crown

ORAL JUDGMENT

McDonald-Bishop JA

1 This is an application by Mr Linford McIntosh, the applicant, for leave to appeal his conviction and sentence for the offences of grievous sexual assault and rape. The applicant was convicted following a trial on a two-count indictment before Harris J (Ag) (as she then was) sitting with a jury in the Home Circuit Court on 31 July 2013.

2 The particulars of count one of the indictment that charged the applicant with the offence of grievous sexual assault contrary to the Sexual Offences Act were that on 9 July 2011, in the parish of Saint Andrew, he penetrated the vagina of the complainant with a body part other than his penis, the complainant being a person under the age of 16 years. The particulars of count two that charged him with the offence of rape also contrary to the Sexual Offences Act were that on the same date and at the same place (and time), he had sexual intercourse with the complainant without her consent, knowing that she was not consenting.

3 The applicant was sentenced on count one to 18 years imprisonment with the stipulation that he should serve a minimum of 12 years before being eligible for parole. On count two, he was sentenced to eight years imprisonment at hard labour with the sentences on both counts ordered to run concurrently.

4 The applicant, being aggrieved by this outcome, filed an application for leave to appeal his conviction and sentence. His grounds of appeal were set out in his filed application as follows:

‘(1) Misidentity by the Witness: - That the prosecution witness wrongfully identified me as the person or amoung [sic] any persons [sic] who committed the crime.

(2) Unfair Trial: — That the evidence and testimonies upon which the learned Trial Judge relied on for the purpose to convict me lack facts and credibility thus rendering the verdict unsafe in the circumstances.

(3) Lack of Evidence: — That the prosecution failed to present to the court any ‘concrete’ piece of evidence material, forensic or scientific evidence to link me to the alleged crime.

(4) Miscarriage of Justice : — That the Court wrongfully convict me for a crime I knew nothing about.’

5 On 16 October 2014 the application was considered and refused by a single judge of this court who opined that the main issue in the case was one of credibility and that the learned trial judge gave the jury the necessary directions, which were adequate. The learned single judge, therefore, found no reason to disturb the findings of the jury or the sentences imposed by the learned trial judge. Notwithstanding the ruling of the learned single judge, the applicant had considered it necessary to renew his application before this court.

6 The circumstances that gave rise to the conviction of the applicant for the two sexual offences are that on 9 July 2011 at about 4:00 pm, the virtual complainant, who was at the time 15 years old, was at home inside her bedroom preparing for a bath. She was getting ready to go to Devon House with the applicant and other family members. The applicant was in a relationship with the complainant's sister who was living with him at the material time. Up to that time, the complainant had known the applicant for approximately six years and would see him on a regular basis.

7 While the complainant was inside the room, the applicant came and stood at her room door and started making sexually charged remarks to her to which she did not respond. When she attempted to pass him at the door, he asked her twice to allow him to touch her vagina and she told him no. She kept on trying to pass him at the door but he pushed her on the bed, lay on top of her and inserted his finger in her vagina. The complainant put up as much resistance as she could but was unsuccessful in her attempts to repel the applicant's advances. Despite her objections, the applicant proceeded to have sexual intercourse with her without her consent.

8 After the incident that same evening, the complainant went to the applicant's house where she saw her sister but she made no report to her about the incident. The complainant also, that same evening, went to Devon House with the applicant and other family members as was previously arranged. The complainant reported the incident to no one until 13 August 2011, after it was discovered that she was pregnant. The complainant testified that she did not report the incident to anyone because she was traumatized, scared and embarrassed. She indicated that she regarded the applicant as her brother-in-law and friend and that she thought she could have trusted him.

9 In his defence at the trial, the applicant gave an unsworn statement from the dock in which he denied having had any sexual intercourse with the complainant. He also indicated that he was a good person who had never been in trouble with the law. That assertion earned him a good character direction. According to him, the complainant fabricated the story after being pressured to do so because his relationship with her sister had ended and his relationship with her mother had gone bad. In further support of his defence, he drew support from the fact that the complainant did not make a report to anyone until the discovery of her pregnancy and also that after the alleged incident, she came to his house and went to Devon House with him. According to him, the complainant had not spoken the truth.

10 At the hearing of the application before this court, Mr Wilson, counsel acting on behalf of the applicant, stated that the two issues for the court's consideration are the applicant's conviction and sentence. He indicated, quite appropriately, that after having had a careful consideration of the matter, he found that there was nothing he could properly urge on the court to impugn the finding of the jury that the applicant is guilty. Counsel's position with respect to the conviction of the applicant is, indeed, quite comprehensible.

11 In treating with the sentences imposed, learned counsel also candidly accepted that given the minimum sentence for the offence of grievous sexual assault, being 15 years, and with the period of 10 years prescribed by the legislature as a minimum period for eligibility for parole, he could not conscientiously argue that the additional two to three years above the mandatory sentence imposed by the learned trial judge for that offence rendered the sentence manifestly excessive. Learned counsel did not advance any argument or make any comment in relation to the sentence for rape, apparently, having recognized that there is no way that he could have successfully advanced an argument that the sentence of eight years imprisonment is manifestly excessive. Accordingly, learned counsel conceded that there was nothing that he could have reasonably advanced in the applicant's favour in support of the application for leave to appeal sentence. He informed the court that he had advised the applicant of his view of the prospect of success of the appeal and the applicant had expressed consent with the position he has taken not to pursue it.

12 Mrs Ebanks-Miller, similarly, submitted on behalf of the Crown that the issue for the resolution by the jury was one of credibility and that the jury had found that the complainant gave credible evidence and that the applicant was not to be believed. From the perspective of the Crown, therefore, there is no proper basis on which the finding of the jury could be disturbed. Learned counsel for the Crown was content to leave the issues concerning the appropriateness of the sentences for the determination of the court.

13 We find the concession of counsel for the applicant and the views expressed on behalf of the Crown to be apt in all the circumstances. As the learned single judge opined, the issue in the case was one of credibility. The resolution of the issues thrown up for the jury's consideration rested...