Lloyd Isaacs v R

• Jurisdiction: Jamaica
• Judge: Straw, J.A.
• Judgment Date: 11 April 2025
• Neutral Citation: JM 2025 CA 30
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: Criminal Appeal No. 87/2018

Lloyd Isaacs

and

R

Straw, J.A.; Foster-Pusey, J.A.; Harris, J.A.

Suit No.: Criminal Appeal No. 87/2018

Court of Appeal

Appearances:

Miss Deborah Martin and Miss Kelly Hamilton for the applicant.

Janek Forbes for the Crown.

Straw, J.A.

1 Following a trial in the Home Circuit Court before Pettigrew-Collins, J. (‘the learned trial judge’) sitting with a jury, on an indictment containing two counts, Mr. Lloyd Isaacs, the applicant, was convicted for the offence of sexual intercourse with a person under the age of 16 years, on 26 July 2018 (count one). He was found not guilty in relation to a count of buggery (count two). On 12 October 2018, he was sentenced to 14 years and nine months' imprisonment at hard labour.

2 The applicant sought leave to appeal the conviction and sentence on the basis of lack of evidence and unfair trial. A single judge of this court considered the application and, on 15 October 2020, refused leave to appeal. The applicant renewed his application for leave to appeal both conviction and sentence and, on 23 June 2023, filed eight supplemental grounds of appeal. At the hearing of this renewed application, permission was granted for the supplemental grounds to be argued alongside the original grounds.

THE EVIDENCE AT TRIAL

3 The Crown's case relied heavily on the evidence of the complainant, who was seven years old at the time of the incident. She gave evidence that she resided at the same address as the applicant, in the home of his niece, DM. DM was the complainant's caregiver while her mother, AG, went to work. The complainant testified that on dates unknown between 31 March 2013 and 12 May 2013, the applicant placed his penis inside her vagina and bottom. The evidence surrounded two separate incidents. The last incident was said to have taken place in a shed in the yard of the residence. The other incident was said to have occurred some days before the shed incident in the applicant's room. Following the shed incident, upon being questioned by her caregiver, the complainant revealed the applicant's actions. A report was made to the police, and the applicant was arrested and charged.

4 At the commencement of the trial, the applicant was only indicted on one count (count one as described above). The particulars of the offence, at that time, indicated that it was committed between 1 April 2013 and 30 April 2013. At the end of the examination-in-chief of the complainant, the dates in the particulars for that count were amended to change the period to an unknown date between “the 31st day of March 2013 and the 12th day of May 2013”. An amendment was also granted to add the second count of buggery that was alleged to have been committed on a date unknown between the same period as the amended count one. In relation to the incident of buggery, the complainant testified that this was the last sexual encounter with the applicant and that it happened in the shed.

5 During the trial, the applicant gave an unsworn statement and raised alibi as a defence. He stated that he is an electrician and, in February 2013, he was working in Bounty Hall, Trelawny. He returned to his residence in March for two weeks and was back in Trelawny for the month of April. He came home on 9 May 2013, but then went to Green Acres to work. At some point shortly thereafter, he received a call from his niece concerning a report that he had molested “the little girl”. It was on his return home that he was arrested by the police. He denied “interfering” with the complainant.

6 In support of his defence, the applicant called two witnesses, his son, Ricardo Isaacs and one Emmanuel Francis. Mr. Francis gave evidence that he was a contractor and that the applicant and the applicant's son, both electricians, worked with him in Bounty Hall, Trelawny, on a construction site. The applicant did electrical work but also carpentry. He said that the project started in February 2013 and that he employed the applicant in March 2013. At that time, the applicant was involved in carpentry work. The applicant went home in March 2013. In April 2013, they were doing mostly electrical work and roofing. He stated that accommodation was provided for persons from Kingston and other parishes, including the applicant and that the applicant stayed on the job for the month of April until the first week in May. He, however, indicated that no log was kept of any movement of the workers on or off the site.

7 The summation of the learned trial judge indicated that Ricardo Isaacs testified that he started working on the site near the end of March and that his father was there in April.

GROUNDS OF APPEAL

8 The grounds of appeal as advanced are as follows:

“Ground 1

The Learned Trial Judge erred when she failed to advise the jurors that the numerous instances of alleged sexual intercourse or sexual assault that arose in the evidence, were events that were not the subject of individual charges on the indictment and/or for which the [applicant] had no prior conviction and thus had not reached the standard of similar fact evidence, and thus were prejudicial and of no probative value in deciding the truth in relation to Count 1.

Furthermore, that allowing the Crown to lead such evidence resulted in gross prejudice to the [applicant] and rendered his trial unfair.

Ground 2

The Learned Trial Judge erred in leaving to the jury the Complainant's evidence that “he placed his finger in her vagina and her bottom”, as conduct sufficient to prove Count 1 of the indictment.

Alternatively, the Learned Trial Judge erred in not directing the jury as to how to treat this issue of lack of proof on the essential ingredient of the offence charged, i.e., lack of any penetration by the penis.

Ground 3

The Learned Trial Judge erred when she told the jury that it was a matter for them whether or not they found that discrepancies, inconsistencies, omissions, or conflicts of interest arose on the evidence, as well as a matter for them what weigh [sic] they should attach to them.

That this failure to assist them in adequately identifying the numerous inconsistencies and discrepancies that in fact arose, as well as assisting them in understanding their relevance to the issues they had to resolve, was [sic] non-direction, resulting in misdirection, which rendered the trial unfair.

Ground 4

The Learned Trial Judge erred when she suggested to the jurors, when directing them, that there were numerous possibilities for why the complainant gave such inconsistent evidence and/or did not report what she testified that she had experienced to her caregivers, with numerous examples that were not supported by the evidence.

That this invitation to the jury to speculate on such an important aspect of credibility denied the [applicant] a fair trial.

Ground 5

The Learned Trial Judge erred when she directed the jury that though there was no duty to prove a motive on the part of the complainant to lie, that the Defence had not produced any evidence of motive was a fact in circumstances where they would have to assess her credibility.

This error placed an undue, additional, and unfair burden on the [applicant], in circumstances where the defence was alibi and it was the defence that the Complainant had lied, to further prove her lie(s) with a motive.

Ground 6

The Learned Trial Judge, having directed that the Complainant was a child of tender years, made no distinction on the impact of this at the time of the incidents as opposed to when she was giving her evidence years later, and further erred in not demonstrating how this fact of her age would or could have impacted her conduct or credibility as revealed in the evidence.

That this failure to adequately assist the jury with the direction and an analysis of the evidence was a non-direction, resulting in misdirection which rendered the trial unfair.

Ground 7

The Learned Trial Judge's direction on how to treat with the character evidence of the [applicant] which arose on the Crown's and Defence's case was inadequate.

Ground 8

The delays between arrest, trial and readiness of the record for appeal, for reasons that were not within the control of the [applicant], have resulted in a breach of his constitutional right to have his matter determined within a reasonable time.”

9 During the hearing of this appeal, counsel appearing for the applicant, Miss Martin, abandoned ground two of the supplemental grounds of appeal and posited that the original grounds were subsumed in the supplemental grounds.

GROUND 1 — THE LEARNED TRIAL JUDGE ERRED WHEN SHE FAILED TO ADVISE THE JURORS THAT THE NUMEROUS INSTANCES OF ALLEGED SEXUAL INTERCOURSE OR SEXUAL ASSAULT THAT AROSE IN THE EVIDENCE, WERE EVENTS THAT WERE NOT THE SUBJECT OF INDIVIDUAL CHARGES ON THE INDICTMENT AND/OR FOR WHICH THE [APPLICANT] HAD NO PRIOR CONVICTION AND THUS HAD NOT REACHED THE STANDARD OF SIMILAR FACT EVIDENCE, AND THUS WERE PREJUDICIAL AND OF NO PROBATIVE VALUE IN DECIDING THE TRUTH IN RELATION TO COUNT 1. FURTHERMORE, THAT ALLOWING THE CROWN TO LEAD SUCH EVIDENCE RESULTED IN GROSS PREJUDICE TO THE [APPLICANT] AND RENDERED HIS TRIAL UNFAIR.

SUBMISSIONS

10 Miss Martin argued that the learned trial judge had failed to point out to the jury that the evidence of other occasions on which the applicant had sexual intercourse with the complainant was not the subject of a charge on the indictment, and so could not be relied upon by them to prove the events for which the applicant was indicted. She further argued that the evidence of other alleged encounters with the applicant was irrelevant and grossly prejudicial, as the evidence did not fall within the ambit of similar fact evidence and should not have been left to the jury as proof of conduct and/or identification concerning either of the charges. She also complained of the evidence of Sergeant Andrea Murray, the investigating officer, who stated that she told the applicant of the report by...