R v White
| Jurisdiction | Jamaica |
| Judge | Rattray, P.,Gordon, J.A. |
| Judgment Date | 27 January 1997 |
| Neutral Citation | JM 1997 CA 3 |
| Docket Number | Criminal Appeal No. 152 of 1995 |
| Court | Court of Appeal (Jamaica) |
| Date | 27 January 1997 |
Court of Appeal
Rattray, P.; Gordon, J.A.; Walker, J.A. (Ag.)
Criminal Appeal No. 152 of 1995
Richard Small for the appellant.
Hugh Wildman and Anthony Armstrong for the Crown
Criminal practice and procedure - Leave to appeal conviction and sentence — Rape and attempted buggery — Sentence of five years imprisonment at hard labour on the conviction for rape and 2 years for attempted buggery was imposed — Whether the learned trial judge erred in permitting the Crown to lead evidence of four purported complaints made by the prosecutrix to persons whom the Crown never intended to call and did not call as witnesses — Whether the learned trial judge failed to assist the jury by relating the applicant's defence to the count of attempted buggery — Whether the trial judge erred in his approach to the issue of sentence and in particular failed to give due account to the circumstances of the applicant, the recommendations of the probation officer and the specific plea for leniency which the jury made on his behalf — Appeal was dismissed — Convictions and sentences were affirmed.
The appellant Kory White was convicted by a jury in the Home Circuit Court on the 24th of November 1995 of the offences of rape and attempted buggery committed against the complainant on the 19th of May 1994.
The case for the prosecution was that the complainant had a few days prior to the 19th of May met the appellant Kory White, a young person, like herself in Hughenden, St. Andrew, whilst she was walking along the roadway. He was standing with another young person at a corner. He introduced himself, spoke to her and gave her his telephone number. She telephoned and spoke to him on more than one occasion. She telephoned him on the 18th of May and told him that she was going next day to visit her friend Kerry in Vineyard Town.
While she was at Kerry's house on the 19th of May, the appellant arrived there driving a motor car. She told him of the places she planned to go with Kerry and he offered to take them there. When she came out she told him that Kerry was on an important telephone call and could not come so she would have to travel with by herself. Since he was not driving in the direction of where she intended to go, she enquired why and he told her he had to drop off some things. He drove to Russell Heights to a house and invited her in. She accepted his invitation. He led her down a passage to a bedroom and she sat on a bed since there were no chairs in the room. She watched television whilst he went into the bathroom. He made amorous advances to her which she rejected. He told her: “Anyone who comes to this house have to get knock.” She replied: (This is one gal you not going to touch today.” Fighting off her resistance, he eventually took off her clothes. She was dressed in jeans pants and T-shirt. He had sexual intercourse with her against her will and despite her protest. As the learned trial judge said in his summing-up:
“It is her evidence that she was moving and telling him to stop. She was moving up and down and going back; she moved as she did not want him to do whatever he was doing. Eventually the accused turned her over, she says, to lie on her stomach and started to insert his penis in her bottom and this is what he said: If yuh boyfriend ever (expletives) like that to you before?’ Her evidence is that he was forcing his penis into her bottom and she was saying, ‘No’, but he was not successful in forcing ‘it’, she says, into her bottom so he turned her back over on her back again to put his penis in her vagina and she fought back with him and he eventually got off.”
After this he left with her back to his car and took her back to Kerry's house. To quote the learned trial judge again:
“She was still in tears and in a temper, she says, and told Kerry about what had happened. She said she had a shower and disposed of her underwear, went home and spoke to her Aunt, Carey Robinson, and told her what had happened.
The following morning she said she went and spoke to her mother and told her what had happened and she went and made a report at the Rape Unit. But before going to the Rape Unit she called her friend and neighbour, Mr. Puddy, a police officer, and told him, the very evening of this incident, what had taken place.
And so eventually she went to the police on the 21st, the Saturday, she said to report the matter. She went to the Rape Unit as well and from there was sent to the Constant Spring Police Station where she eventually saw and made a report to Acting Corporal Waiters who came to give evidence here.”
She had received no injuries or scratches and neither did she inflict any on the appellant.
In the summing-up reference is made to Woman Constable Grace Gordon from the Rape Unit, the Officer to whom the complainant made a report on the 20th of May, 1994.
“She was present”. (The complainant) “came to Unit and she was examined by the doctor who obtained a certificate, vaginal swabs and smears and she made seated parcels of these exhibits and took them to the Forensic Laboratory. She also gave evidence that she had received a certificate from the doctor and she was at the preliminary enquiry when the certificate and other exhibits were admitted in evidence there.”
It is to be noted that no medical evidence was given in this case. With respect to the medical report the Learned Trial Judge had this to say:
“Remember what I told you members of the jury, concerning admission of the medical report as in these courts even though they may have been admitted in the preliminary enquiry, this Court did not admit them as a right.
The doctor, the expert must be called. You have heard discussions between counsel, the prosecution and the defence as to the availability of the doctor. The doctor is not available until some time next year. There is some talk also that the doctor was not on the indictment, so therefore, the prosecution was not obliged to call this doctor.
Members of the jury, it is a matter for you to deal with and treat it accordingly the way you see it fit. But bear in mind what I have told you about the admission of these reports, certificates in trials of this nature in these courts.”
The Evidence (Amendment) Act 1995 in force at the time of the trial does provide under section 31 D the circumstances under which: “A statement made by a person in a document shall be admissible in criminal proceedings, as evidence of any fact of which direct or oral evidence would be admissible.”
Detective Acting Corporal Daniel Waiters, the Investigating Police Officer, gave evidence of a report made by the complainant on the 21st of May and the subsequent arrest of the appellant. In respect of his evidence the learned trial judge stated:
“…you recalled what efforts, what attempts he made to make contact with other persons to whom” (the complainant) “spoke to about this incident to have witnesses for it. You saw him, you will have to assess him and say what you make of him. We heard that Kerry, the friend, has now left the island but no statement was taken from her before her departure. Who was' responsible? Mr. Daniel Waiters, Acting Corporal of Police, that is how he investigates his cases. It is a matter for you to say how you assess him and what you make of his evidence…”
The appellant gave evidence supporting how they just met at Hughenden subsequent telephone conversations, and meeting her in Vineyard Town on the 19th of May. He invited her to his house on Durie Drive, Russell Heights to spend some time together with her and she agreed. He took her to his bedroom where they watched television. Both of them were sitting on a bed. White they spoke: “We got close to each other. She put her right hand on my left thigh and I came closer to her. I start to rub her down her side and then we laid on the bed and the caressing got more intense.”
He told her he wanted to make love to her and she said: “All right, but use a condom. He took off her jeans and underwear, removed his clothes, put on a condom on his penis and “according to him they made love for about two to three minutes.“Then he said:
“We switched positions. She knelt on the bed and I went behind her and again inserted my penis into her vagina.”
He said:
“We made love in that position for about two minutes. He withdrew his penis and he ejaculated into the condom. He got off, went into the bathroom. Keisha also used the bathroom, he says and they left the house together shortly after watching T.V. again. They left and went back to Vineyard Town, on his evidence, back to where the sister's house is.”
He denied putting or attempting to put his penis into her anus. The defence was that the complainant had consented to having sexual intercourse with the appellant and that the appellant honestly believed from her reaction and the part she played that she, in fact had consented to such sexual intercourse.
The learned trial judge withdrew buggery from the jury but left it open for the jury to find attempted buggery. He told the jury:
“The offence of buggery is where in this case, a man has intercourse with a woman, he uses his penis to penetrate her anus; and as I have said before penetration of the male organ in the anus is sufficient to establish this offence.”
Then further:
“If the evidence points only to an attempt at buggery that offence of attempted buggery is proved without evidence of penetration.”
He further continued:
“So, what is the evidence which has been presented by the prosecution in relation to this count for buggery? You will recall, Mr. Foreman and members of the jury, that the complainant testified that during the act of sexual intercourse the accused turned her over on her stomach and started to insert his penis in her bottom. It was also her evidence that whilst he was forcing his penis...
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