Mervin Jarrett v R
|Court of Appeal (Jamaica)
|31 March 2017
|JM 2017 CA 12, JMCA Crim 18
|Criminal Appeal No 93/2010
|31 March 2017
 JMCA Crim 18
The Hon Mr Justice Morrison P
The Hon Miss Justice Phillips JA
The Hon Miss Justice Edwards JA (AG)
Criminal Appeal No 93/2010
Roy S Fairclough for the appellant
Mrs Karen Seymour-Johnson for the Crown
Criminal Appeal - Rape — Appeal against conviction and sentence — Consent — Whether the trial was unfair — Credibility — Corroboration warning — Whether the judge properly exercised her discretion — Whether the judge ought to have given the jury a Lucas direction — Whether the judge failed to give sufficient assistance to the jury on how to approach the evidence relating to the appellant's defence of consent — Whether a new trial should be ordered.
On 28 and 29 July 2010, the appellant was tried in the Saint James Circuit Court before P Williams J (as she then was) (‘the judge’) and a jury, on an indictment containing three counts. The first count charged him with abduction, the second indecent assault and the third rape. Upon the appellant's conviction on 29 July 2010, the judge sentenced him to six years' imprisonment for abduction, two years' imprisonment for indecent assault and 12 years' imprisonment for rape, ordering that the sentences should run concurrently.
The appellant sought leave to appeal his conviction and sentence and, on 4 July 2011, after consideration of the application on paper, a single judge of this court granted leave as prayed. The single judge also ordered that a full transcript of the evidence given at the trial should be obtained for the benefit of counsel and the court. Regrettably, for reasons which are not known, the transcript of the evidence did not reach this court until 20 November 2015.
The appeal was finally heard on 30 January 2017. At the completion of the hearing, the court announced that the appeal would be allowed. The appellant's convictions were accordingly quashed, the sentences set aside, and a judgment and verdict of acquittal entered. These are the reasons for the court's decision which were promised at that time.
The case for the prosecution was as follows. At about 8:30 pm on 5 May 2009, the complainant, who was then a 16-year-old schoolgirl in school uniform, was at Sam Sharpe Square in Montego Bay, waiting on a taxi to take her to the Westgate Hills area. The appellant drove up in a white Toyota Corolla motor car and shouted “Mount Salem”, which was where the complainant wished to go. The complainant accordingly entered the appellant's car and sat in the seat behind the driver's seat. After leaving Sam Sharpe Square with the complainant as the only passenger in the vehicle, the appellant told her that he was going to the Kentucky Fried Chicken (‘KFC’) outlet to collect three ladies. There being two KFC outlets in Saint James, the complainant assumed that the appellant was heading for the one that was closest to Sam Sharpe Square. But, when they got to a stop light in the vicinity of that outlet, the appellant indicated that he was going to the one further away, in the direction of Bogue. The appellant thereafter took the complainant to that KFC outlet. Not seeing the persons whom he was looking for there, he then went into a restaurant called Jerky's on the same compound, only to emerge alone. He drove off again, with the complainant still the lone passenger in the car.
The appellant continued to drive in the opposite direction to Mount Salem, “going toward like you going Negril way”, as the complainant put it in her evidence. When the complainant became concerned and asked where he was going, the appellant told her that he was going to a restaurant. They arrived in due course at a restaurant called ‘Kokonutz’ in the Reading area of Saint James. Leaving the complainant alone in the car, the appellant went into the restaurant, then returned, still alone, and continued driving as if to Negril. This prompted the complainant to ask him again where he was going. He told her that he was going up the road to urinate, since he did not want the police to charge him, as the fine was $5,000.00. He drove up a hill to a secluded area where he stopped on the road and came out of the car. He went towards the back of the car and stood up as if he were urinating. He then re-entered the car and drove off. This prompted the complainant, who was by this time worried and frightened, to ask again, “Driver where you going?”, to which the appellant replied that he was going up the road to turn the car around. This done, the car headed back down the hill, when, according to the complainant, “the car began to rock like wobbling”, leading the appellant to say, “How it come like one a mi tyre dem buss so”. The appellant stopped the car again, came out, and then re-entered through the back door onto the seat where the complainant was seated. Overcoming her efforts to resist, the appellant proceeded to indecently assault and rape her.
When he was finished, the appellant went back into the driver's seat and drove off. Back in Montego Bay, the complainant told the appellant to let her off at a point on Howard Cooke Boulevard. Immediately upon exiting the car, the complainant noted the licence plate number (5733 FB) of the appellant's car and telephoned her mother. She then set out for her mother's house in Catherine Hall, which was within walking distance of where the appellant had let her off. There, she told her mother everything that had happened. Her sister was also present. Her parents later took her to the Montego Bay Police Station where she made a report and was then taken to the Cornwall Regional Hospital, where she was medically examined.
The complainant was cross-examined at length by counsel who represented the appellant at the trial (Mr Ernest Smith) as to (i) the total amount of time she had spent in the appellant's car that night; (ii) the fact that she at no time told the appellant to let her out of his car so that she could take another taxi; (iii) the fact that, although she had been left alone in the car while the appellant went in to the KFC, Jerky's and the Kokonutz restaurants, she had made no attempt to leave the car, or telephone any of her relatives or friends to tell them where she was or to express fear; and (iv) the fact that she did not complain to the appellant that he was keeping her out too late.
It was suggested to the complainant that she had in fact known the appellant before that night; that he had driven her in his car on several previous occasions; that they had both struck up a “friendly relationship”; that their meeting in Sam Sharpe Square that night was by pre-arrangement; that they had engaged in consensual sexual intercourse that night; that the reason why she went to her mother's house afterwards was because her father was very strict and she was afraid of what he would do as a result of her having come home so late; and that it was after her father was called bout how late she had come home that she “then made a report that it is the accused man had raped you [sic]…” All of these suggestions were denied by the complainant. However, in response to the further suggestion that she knew “everything about the accused man and his car”, so much so that in her statement to the police she was able to give “a full description and details of the car”, the complainant's answer was “I don't remember”.
A few days after the incident, on 8 May 2009, the complainant's father, to whom she had given the licence number of the appellant's car, saw a white Toyota motor car bearing the same licence plate number in Hopewell in the parish of Hanover. A man, subsequently identified as the appellant, came out of the car, shouting “Mobay, Mobay”. Upon seeing a police jeep coming from the Sandy Bay direction, the complainant's father stopped it and made a report to the police officers who were in the jeep. The officers approached the appellant and told him about the report they had received and asked him about the ownership of the car and who had possession of it on the night of 5 May 2009. According to the police officer, the appellant's response was that he had loaned the car to a friend but he was unable to provide any information about the friend and the officers took him to the Sandy Bay Police Station.
But it was put to the police officer by the appellant's counsel, in a suggestion which was denied, that the appellant did not tell him that he had loaned out his car on the night in question. And, in his unsworn statement, the appellant said that, when asked if he was the owner of the car, he replied affirmatively and that, in response to the suggestion that he had raped the complainant, he had answered, “Me and [the complainant] have a relationship sometime now”.
In due course, after investigation by the police, the appellant was arrested and charged with the offences of abduction, rape and indecent assault. The arresting officer gave evidence that, when cautioned, the appellant said this:
“Me and har a ‘fren for about two weeks now and because me promise fi give har Two Thousand Dollars and me never give har, that's why she go tell har father say me rape har.”
In his defence, the appellant made a brief unsworn statement, in which he said that he and the complainant had been involved in a relationship. He did not deny meeting the complainant and having sexual intercourse on the night of 5 May 2009, but said that this was the consensual outcome of a pre-arranged meeting. He said that the complainant told him that she could not go home to her father's house that evening because it was too late and she was going to her mother's house instead; and that she was the one who asked him to drop her off on the Howard Cooke Boulevard. Sometime later, he was in Hopewell when a police car drove up beside his and, when the officers asked him if he was the owner of the car, he told them that...
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