Owen Vhandel v R
| Jurisdiction | Jamaica |
| Judge | Morrison JA |
| Judgment Date | 28 September 2012 |
| Neutral Citation | [2012] JMCA Crim 47 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 8/2012 |
| Date | 28 September 2012 |
[2012] JMCA Crim 47
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Mr Justice Morrison JA
The Hon Mr Justice Brooks JA
RESIDENT MAGISTRATES' CRIMINAL APPEAL NO 8/2012
CRIMINAL LAW - Indecent assault - Conviction and sentence - Whether the appellant's constitutional rights were breached in not being given opportunity to obtain legal representation during the course of the trial - Whether the learned resident magistrate erred in allowing and relying on hearsay statements
On 15 July 2011, the appellant was convicted by Her Honour Miss Stephane Jackson-Haisley, a Resident Magistrate for the Corporate Area, on three counts of indecent assault. On 8 November 2011, he was sentenced by the learned Resident Magistrate to six months' imprisonment on each count and the sentences were ordered to run concurrently. This is an appeal by the appellant from his conviction and sentence.
The complainants in the case were two young girls, who we shall describe in this judgment as MW and AR. Two of the charges against the appellant related to MW, who was born on 22 July 2001, while the other related to AR, who was born on 4 November 2004. The three separate incidents which formed the basis of these charges were alleged to have taken place between January and October 2009, when the girls were seven and four years old respectively. At the material times, the appellant and the complainants were all occupants of residential premises in the Kingston 11 area. They were occupants of what was described by the complainants” mother, Miss CF, as ‘one big house’. The appellant occupied one section, while Miss CF, her common law husband, DT, and the complainants occupied another. There were also other occupants of the house and the various rooms were separated by partitions made of board.
MW's evidence was that at about noon on a date between January and March 2009, she went to fetch AR who had wandered into the appellant's apartment. There, in the presence of her sister, she saw the appellant lying down on a settee and she went in front of the settee. The appellant took hold of her right hand and rested it ‘on his belly and then his belt and then his penis’. He held her hand on his penis for about a minute and, though she did not see it, she felt that ‘it was hard’. She then pulled her hand from his and went to make a report of what had happened to her mother.
On 11 April 2009, MW testified, the appellant ‘did it again’. She had again gone to fetch her sister and, this time, he took her left hand and ‘rest it on his belly, belt, then his penis’. Again, she did not see his penis, but it ‘felt hard’. She also reported this incident to her mother.
MW was extensively cross-examined by the appellant, who represented himself at the trial. Asked why she had felt it necessary to go to his room for her sister, MW's response was that she had been instructed by her mother, who described him as ‘a raper’ not to go to his house. Although she was aware of an incident between her mother and the appellant which had resulted in her having been taken to court by him, found guilty and required to pay a fine of $2,000.00, MW denied his suggestion that she was telling lies against him as regards the two incidents in early 2009.
By the time she gave her evidence at the trial on 16 December 2010, AR was still only six years old. Although she did not remember the date, she told the court of an occasion on which the appellant had called her into his room, grabbed her and ‘put his penis right at my nose’. She was alone with the appellant in his room at that time, but when she left she went and made a report to DT (who both girls described as their stepfather). Briefly cross-examined by the appellant, she denied the suggestion that it was her mother and DT who had put her up ‘to say these things’ against him.
In her evidence, Miss CF, the girls' mother, could not recall if anything had happened between January and March 2009, but recalled an evening in March of that year when MW reported to her that the appellant ‘took her hand and rest it on his penis’. She warned her, as she had done before, to stay away from the appellant.
In April of that year, MW made a further report to her that the appellant had again taken her hand and rested it on his penis. Miss CF then went to the appellant's door and asked him, ‘What is that [MW] said you did?’, to which his response was ‘A now she just a tell you that?’ Miss CF then summoned the police, who in due coursearrived and spoke to her, to the girls and to the appellant himself, before leaving the premises. In October 2009, with the girls still making complaints to her, she made a report to the Centre for the Investigation of Sexual Offences and Child Abuse (“CISOCA”).
Miss CF was cross-examined at great length by the appellant. She agreed that she did not trust him and confirmed that she had warned the girls to ‘stay far from [him]’. She also agreed that, by the time she made the report to CISOCA, she had in fact been found guilty in the Half Way Tree Resident Magistrate's Court on 5 October 2009 of assaulting the appellant and sentenced to two months” imprisonment or a fine of $2,000.00. But while that trial was in progress, she testified, ‘I had no idea what Mr Vhandel did to [AR]’. (A curious feature of the instant case was that, throughout the trial, the appellant referred to himself in the third person, as “Mr Vhandel”, and on occasion Miss CF did the same.) Miss CF agreed that she had made no report to the police after MW's first complaint in March 2009. Asked whether, as a result of the conviction for assaulting him and her having to pay a fine of $2,000.00, she felt ‘animosity towards Mr Vhandel’, Miss CF's answer was that ‘I was not thinking about Mr Vhandel, I was thinking about my kids’. She denied that AR's evidence was ‘coached’ by her, that her evidence against him was motivated by malice or that her evidence was ‘a litany of lies and a fabric of falsehood’.
Constable Christopher Brown of CISOCA gave evidence of having reviewed the complainants' statements, interviewed the appellant and arrested and charged him on 21 December 2009. Thereafter, the Crown closed its case.
Giving sworn evidence in his defence, the appellant identified himself at the outset as a school teacher. He told the court he was told by the police that the allegation against him was that ‘you push you penis in a girl nose’, to which he ‘made a scoffing gesture and said “Unu lucky say it never in her mouth”’. He described the charges against him as false and -
‘…the result of a cunningly, contrived conspiracy to seek revenge for their having been sentenced for unlawful assault against Mr Vhandel, that the allegations against Mr Vhandel are a malicious misrepresentation of the actual facts, deliberate distortions of the truth or just plain outright lies. The allegations against Mr Vhandel are purported to have happened before the charge, trial and sentencing of the supposed victims' mother [CF]. Up to the time of her trial and sentencing [CF] had made no allegations against Mr Vhandel although she was invited to explain when the quarrel between himself [sic] and Mr Vhandel were about [sic].’
Insisting that the complainants were telling lies against him, the appellant characterised his arrest as an attempt ‘to stave off’ the service on DT of a summons for assaulting him, for which DT was subsequently convicted.
The appellant called a number of witnesses. Mr Richard James, a Deputy Clerk of Courts attached to the Corporate Area Criminal Court at Half Way Tree, recalled that the appellant was successful in a prosecution for assault against Miss CF, but could not recall what the sentence had been. Mr Philmore Scott, an attorney-at-law, indicated that on 21 December 2009 he had been present at the Half Way Tree Police Station when two police officers had conducted a question and answer session with the appellant. DT confirmed that, on 19 April 2010, he was ‘charged for an offence between me and [the appellant]’, and that he was convicted. He also said that he hadmade a complaint that the appellant had been ‘harassing the children’, and that ‘[f]rom day one we warned the girls against Mr Vhandel’. Detective Sergeant Kirk James, attached to CISOCA, recalled going to the premises occupied by the family of the complainants and the appellant on 16 December 2009, in the company of another police officer, for the purpose of arresting the appellant. And lastly, Constable Sharleene Griffiths, who was also attached to CISOCA, recalled meeting the appellant and speaking to Miss CF, MW and AR during the course of the investigations.
The learned Resident Magistrate prefaced her findings of fact with reminders to herself to consider each count separately and that there was no corroboration of any of the incidents. She warned herself of the dangers of convicting on evidence such as that given by the complainants without corroboration. She also took into account the fact that the complainants were ‘two young girls’ and that ‘[y]oung persons are sometimes proned [sic] to telling lies for various reasons and sometimes for no reason at all’. Further, she reminded herself of such discrepancies and inconsistencies as were to be found in the Crown's case and stated that she did not find any of them to be fatal to the Crown's case. She considered both MW and AR to be truthful in the evidence which they gave and concluded as follows:
‘I accept that on a day between January 2009 and March 2009 [MW] was living in the same yard as Mr Owen Vhandel. I accept that she went to his house to call her sister. I accept that whilst in his room, he was in his settee lying down. I accept that [MW] was standing in front [sic] the settee and he took her hand and put it first on his belly, then his belt...
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