R v Manning (Kirk)
| Jurisdiction | Jamaica |
| Judge | HARRISON, J.A. |
| Judgment Date | 20 March 2000 |
| Neutral Citation | JM 2000 CA 14 |
| Judgment citation (vLex) | [2000] 3 JJC 2001 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 March 2000 |
CRIMINAL LAW - Illegal possession of firearm - Rape - Alibi
The appellant was convicted in the High Court Division of the Gun Court on 4th March, 1999 of the offences of illegal possession of firearm and rape committed on 20th June, 1997 and sentenced to eight years and twelve years imprisonment at hard labour respectively. The material facts are that on 20th June, 1997 at about 2:00 p.m. the complainant M. P. was walking on her way to her house and about to enter a track in a big yard in the Crescent Road area of St. Andrew at a point bordered by a house on one side and a wall and zinc fence on the other when she saw the appellant known to her as "Dudu" approaching her. She stopped, the passage way being too narrow for them to pass each other abreast. The appellant told her not to move and said 'A long time you a diss me." The evidence then reads:
"A: I ask him what him mean by A long time mi a diss him' and him epoat him statement that is ong time mi a diss him. Him sey long time him want mi an' mi nuh waan deh wid him. Mi seh to him now seh ...
HIS LORDSHIP: A: That time you stop?
A: Yes.
HIS LORDSHIP: A. You talking to him face-to face now?
A: Face to face, yes. And I said to him 'A tell you already that there can never be a relationship with me, we caan deh, there is no way we can have a relationship' and him sey if mi nuh big woman?
HIS LORDSHIP: A: And he said what?
A: If mi nuh big woman?
HIS LORDSHIP: A: If what?
A: If I am not a big woman and I said yes, and then he asked me how old was my oldest child and I say three and him ask me seh how mi would'a feel if...
HIS LORDSHIP: A: Yes, he asked you how old is your oldest child and you told him three- Yes?
A: No, my oldest child is not three.
HIS LORDSHIP: A: But did you answer him?
A: Yes, and I fell him the age of my oldest child is three.
HIS LORDSHIP: Yes.
A: And him seh how would I feel if my hild knew that I got raped, how would I feel?
HIS LORDSHIP: That is what he said to you?
A: Yes. I did not reply to that."
The appellant then took a firearm from his side pointed it at her, she heard a click, she saw the trigger, a short gun, and "a long mouth through "here the shot come through". He told her to reverse and directed her through a gate into a neighbouring yard to the back room of a house. He, still with the gun, ordered her to take off her clothes, which she did and he then raped her and left. The complainant Then went to her house in the big yard, and returned to her work place, at a clinic, crying. The police was called and she made a report.
The appellant had been known to the complainant as "Dudu" for a long time and she had seen him frequently over the period of three months before,"... almost every day" because he used to visit a friend of his in a cook shop in a yard next door to where she lived. The complainant was accustomed to see the appellant in the lane where she lived. He called her "Karen", and would say to her"... what happen you nah deh wid mi?" She said, in evidence in chief:
"And him would seh 'Yuh soon know'cause me a go kick off yuh door an' yuh wi see'. Mi never tek him serious so mi never report it to the Board of my workplace."
She admitted that she was afraid of him. Cross examined, she admitted that there had been gang warfare in the Crescent Road area, but not in the area where she lived and that the appellant lived on the same side as she did.
She denied that she was telling lies on the appellant because of the gang warfare, maintained that he kept telling her that he wanted to be intimate with her, and insisted that the appellant had said he was going to rape her and did rape her.
The defence projected was an alibi and malice on the complainant's part. In his evidence, the appellant maintained that at the time of the offence he was "into a yard building graters." He knew the complainant, knew where she lived and confirmed that he was accustomed to visit a friend next door to where she lived in order to buy cooked food, and food was cooked there every day except Wednesdays and Sundays. He denied that he had ever told her that he wanted to have sex with her nor did he point a firearm at her and have sex with her. He knew that she worked at the clinic.
Mr. Wilkinson for the appellant, having been granted leave to argue nine supplemental grounds, argued together grounds 3 and 8:
"3. False statement given by witness.
...
8. The learned trial judge erred in finding as a fact that the virtual complainant was a credible witness and that she was '...speaking the truth, the whole truth and nothing but the truth'."
>He submitted that the learned trial judge, in finding that the complainant was truthful, and that she was "...highly intelligent., and .. overly impressive" failed to direct his mind to the flawed credibility of the...
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