R v Benjamin
| Jurisdiction | Jamaica |
| Judge | Lewis, J. |
| Judgment Date | 26 September 1963 |
| Neutral Citation | JM 1963 CA 6 |
| Docket Number | Criminal Appeal No.82 of 1963 |
| Court | Court of Appeal (Jamaica) |
| Date | 26 September 1963 |
Court of Appeal
Cundall, P.; Lewis, J.; Duffus, J.
Criminal Appeal No.82 of 1963
Mr.N.Hill for the appellant
Mr.J.S. for the Crown
Criminal Law - Appeal against conviction — Rape
In this case the appellant asks leave to appeal against his conviction in the Home Circuit Court on the 3 rd of July, 1963 on both counts of an indictment which charged him with burglary with intent to rape and the substantive offence of rape.
For the purposes of this judgment the facts may be very briefly stated because the point, which has been taken, is a very short point in law. I would preface my remarks, however, by saying that because of certain extraordinary features in the case, rather in the story of prosecutrix, the court has given exceptionally careful attention both to the summing-up
The reasonableness of the jury's verdict has not been attacked in any way and the fault that has been suggested relates rather to the directions by the judge in his summing-up. I shall deal first with the second point that was taken, namely that the learned trial judge in dealing with the question of a partition which existed between the room in which the offence was alleged to have been committed and the room in which a witness tendered by the prosecution for cross-examination lived, did not adequately point out the significance of certain features of that partition. The court has looked carefully at the summing-up.Mr. Hill has said that the importance of his reference to that partition related to the ability of that witness to hear what was going on in the room at the time when the crime was alleged to have taken place, and the court thinks that the summing-up sufficiently made clear to the jury that whatever was going on in one room could be heard in the other, and that there was no misdirection in this respect.
Now, learned counsel also suggested that the judge appears to have misunderstood his submission on that point, but learned counsel at the end of the case was given an opportunity of requesting the judge to add anything that he wanted and did not avail himself of that opportunity or suggest to the learned judge that he had misunderstood him. The court, therefore, thinks that there is no merit in this particular point.
For the purpose of dealing with the other point, I shall now relate the facts briefly. The woman Olga Kennedy's story was that on the night of the 25 th of January this year she went to bed and that sometime early the next morning she was awakened by a noise and she woke up to see a ma crouching by the head of her bed, that she screamed and that the man put out the light which she had in her room, pointed at her a shiny object which looked like a knife and which he took from his pocket, and demanded “either sex or your life”.She went on to say that trembling with fear and crying she refused this man sexual intercourse but that he took off his shoes and got on her bed and had sexual intercourse with her, she yielding because of great fear. According to her story, on the completion of this act the applicant had a conversation with her, which lasted some time, and then he went to sleep on the bed, after threatening her that if she called the police eh would get even with her at some later time. She said that she remained there for...
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