R v Fuller (Andrew)
| Jurisdiction | Jamaica |
| Judge | HARRISON, J.A: |
| Judgment Date | 20 December 2001 |
| Neutral Citation | JM 2001 CA 78 |
| Judgment citation (vLex) | [2001] 12 JJC 2016 |
| Date | 20 December 2001 |
| Court | Court of Appeal (Jamaica) |
CRIMINAL LAW - Illegal possession of firearm - Rape - Defence of consent
The appellant was convicted in the High Court Division of the Gun Court on the 21 st day of May 1999, of the offences illegal possession of firearm - count one, and rape - counts two to five, and sentenced to five (5) years imprisonment OR each count. The sentence on count one was ordered to run consecutively to counts two to five. We treated this application for leave as the hearing of the appeal.
The facts are that on the 19 th day of May 1995, at about 2:30 p.m. the complainant was talking with a girl named Squits on the road at Waterhouse in the parish of St. Andrew, when on walking away five men blocked her path, and held her hands. She resisted and cried out. She was pulled into certain premises, and into a room of a house where three of the men had sexual intercourse with her without her consent. The appellant then entered the room and told the other men to leave the girl alone or else he would shoot one of them. The appellant then had a firearm stuck in his waist. One of the men said "Father whey you a do?" The appellant chastisingly asked, "Don't you have sisters too?" The appellant took the complainant out of the house. Squits was outside and the complainant told Squits that she had been raped. Squits asked the appellant to take the complainant to the bus stop. He said that he would. While walking with the appellant, the complainant enquired where she was being taken. The appellant retorted that she should "shut up and come." The appellant continued walking with the complainant and she was pushed up to a fence and told to climb over. She at first refused to, and he told her, "If you don't go over the fence look wha gwine happen to you today." While climbing over the fence, the complainant told the applicant that "the wire is cutting my foot," to which he replied "you lucky." She was taken into a yard into a house, where the appellant ordered a man out of the house, pushed the complainant into a room, locked the door and put the key into his pocket. The complainant said to the appellant, "After you help me, how come you want to rape me after that." The appellant replied that he "would not call this rape." The complainant expressed a desire to go home. The appellant told her that she was not going home, pushed her down onto a bed in the room, took the firearm from his waist, placed it on the dresser and told her to take off her clothes. She refused and the appellant took up the firearm and again ordered her to take off her clothes. She refused. He then took off her clothes. She again asked him "How could you want to rape me and you helped me." He told her that she chatted too much, "shut yuh mouth or you wi see." He pushed her down onto the bed and had sexual intercourse with her without her consent. After he had finished she again insisted that she wanted to go home. He told her that she was not going home but was staying with him for the night. The appellant further told her "you nuh fi walk with people who can't help you when you in a trouble." The complainant started to cry. It was then after 3:00 p.m. The appellant had sexual intercourse with the complainant three more times that night. The firearm was at those times under the pillow. She was able to see his face. The following morning the appellant opened the door. The complainant who had put on her clothes, ran through the door to a bus stop and took a bus home. At home the complainant sent a message to her mother who came home at about 8:00 a.m. Asked, she told her mother that she had been raped. The complainant and her mother went to the Olympic Gardens Police Station and made a report and she was taken to the Rape Unit. The following day she was examined by a doctor. The complainant's mother testified that the complainant reported to her that she had been raped. A Detective Constable received a report from the complainant and her mother on 20 th April 1995, and as a consequence spoke to the girl named Squits. As a result he obtained warrants for the arrest of the appellant. On February 6, 1995, the appellant was taken to the Olympic Gardens Police Station by police officers. Detective Daley told the appellant of her investigations, showed and read the warrant to him and arrested him for the offence of carnal abuse, abduction and illegal possession of firearm. He cautioned the appellant who said "Officer say mi rape her, butmi nuh use nuh gun."
The appellant gave evidence in his defence. He said that at about 1:00 p.m. on the day of the alleged offence, he was told something and he went from Christian Lane to a yard on Balcombe Drive at about 1:00 p.m. He shouted and said "Trapper Jack ah come." He heard running and things falling. He did not see the person running. He went to the door of a house and saw "this black girl coming out." He invited her to "go round to where Chris is." She went to one Richie's house, bathed and ate. At about 5:00 p.m. the complainant, Richie and himself, went to the bus stop. There the complainant leaned against him, a gesture which he interpreted as a loving one indicating a willingness to indulge in an intimate relationship. They left the bus stop and he and the complainant went...
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