R v Williams (Derrick)

• Jurisdiction: Jamaica
• Judge: FORTE. P.
• Judgment Date: 06 April 2001
• Neutral Citation: JM 2001 CA 14
• Judgment citation (vLex): [2001] 4 JJC 0607
• Court: Court of Appeal (Jamaica)
• Date: 06 April 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE COOKE, J. A. (Ag.)

SUPREME COURT CRIMINAL APPEAL NO: 12/98

REGINA

VS.

DERRICK WILLIAMS

Delano Harrison, Q.C., for Appellant

Bryan Sykes, Senior Deputy Director of Public Prosecutions for Crown

CRIMINAL LAW - Illegal possession of firearm - Rape - Uncorroborated evidence

FORTE. P.

1 The appellant was convicted on the 20 ^st January, 1998 in the High Court Division of the Gun Court for the offences of illegal possession of firearm and rape and sentenced to ten years and twenty years respectively. It was ordered that the sentences should run concurrently. On the 22 ^nd November 2000, the matter came before us, leave to appeal having been granted by a single judge. Because of the particular nature of the legal arguments advanced, we took time out to arrive at a decision, promising to deliver judgment at a later date. This we now do.

2 The major point taken before us centred on the fact that the learned trial judge in coming to his decision did not express in his reasons that there was no evidence of corroboration and that being so that he had warned himself of the dangers of acting on the uncorroborated evidence of the complainant before accepting her as a witness of truth. Counsel for the Crown faced with the reality of the learned trial judge's omission to do so invited us to say that there is no necessity for the judge to warn himself where, as in this case the only issue in the case concerns the identification of the appellant as the assailant. In the instant case, he maintained, the learned trial judge, expressly demonstrated in the words he used, that he was aware of the cautious approach he ought to take in accepting the correctness of the identification in circumstances where there is no independent support for that testimony. In those circumstances, Mr. Sykes contends, the cautious approach would have been taken in respect of the only issue, which arose in the defence.

3 The facts upon which the appellant was convicted are straightforward. On the 12 ^th July, 1997 at about 11.30 p.m. the complainant, having come from a gospel concert arrived at 26 Merrtdale Avenue, the home of her brother Sheldon and where she intended to spend the night. She called out at the front of the house, and receiving no response went to the back to see if she could attract the attention of the occupants (her cousins) of the house, in order to gain entrance. While there, the appellant she said, approached her armed with a gun. Her reaction was to scream and cry, but the appellant silenced her by hitting her with the gun and demanding that she "shut up." He thereafter raped her, and hit her in her face causing a wound. With the wound bleeding he took her to the washroom on the premises so that she could wash away the blood. While she did this, he watched over her, with the gun pointed at her. The wound having been cleaned, he took her back to where he had earlier raped her. He put the gun in his pocket and proceeded to rape her once more. She managed to get the gun from his pocket, but in a struggle which ensued the assailant bit her on her hand and managed thereby to retrieve the gun from her. She nevertheless succeeded in escaping from him, fleeing to the sanctuary of the next-door neighbours from where the police were called.

4 In an unsworn statement, which formed his defence the appellant, said this:

"You Honour, me and Sheldon was have a dispute at road and he said he was going to set me up. Your Honour and he take me to Half-way-tree Court, Your Honour, three time, 21,22 ^nd and 24 ^th , he tek me Thursday night. And he tek me Thursday night and carry me to Central and he put me on a parade on the 30 ^th , whey him done show me up to the public, Your Honour.

Your Honour, a don't know nothing that they talking about Your Honour.

I am not the one that try to rape no one, Your Honour I am not the one to do that, Your Honour. Your Honour, they take me away from my family and try to blame me Your Honour, a don't know anything they are talking about. I am not the one to idle to do those things, Your Honour; I don't hold a gun to do nothing, Your Honour. A don't know nothing about gun, Your Honour, or rape, Your Honour. They try to mix me up; I am innocent, Your Honour. A never seen that girl before yet, Your Honour, first time I been seen her when she come to court today, never been seen her yet."

5 The above statement is the basis for the Crown's contention that the only issue raised by the appellant was one of identification, and the consequent submission summarized heretofore.

6 Before dealing with its applicability to the facts in the present case an examination of the legal principles governing the warning in the absence of corroboration in rape cases is appropriate. There is no necessity to re-state the principles as pronounced in the earlier cases except to look at the reasons for and the backgound to those principles. It is sufficient to commence with the case of Eric James v. R [1970] 12 J.L.R. 236 where it was held inter alia, that it was a serious misdirection not to tell the jury that there was no evidence capable of amounting to corroboration of the complainant's evidence that she was raped, and raped by the appellant. Viscount Dilhorne who in delivering the opinion of the Board of Her Majesty's Privy Council, made the above statement, went on to say that such a misdirection is so serious that the conviction should be quashed. In that case, the defence was an alibi, consequently putting the identification of the accused in issue, but nevertheless the Board concluded that the jury ought to have been told that there was no evidence capable of amounting to corroboration. Unfortunately, as that omission by the learned trial judge was not the only error that occurred in the case, their Lordships therefore had no option but to advise that the appeal be allowed.

7 It is easy to understand the gravity of the error in not telling the jury that there was no evidence that could amount to corroboration, as a possible result would be that the jury may be looking for corroboration where there is none and perhaps assign that quality to evidence which did not amount to corroboration. In the instant case the learned trial judge did not speak to corroboration at all, neither stating that there was none, nor that he had warned himself.

8 It is his omission to warn himself that led Mr. Delano Harrison, Q.C. for the appellant to rely on the case of R. v. Clifford Donaldson, Leroy Newman and Robert Irving, a judgment of this Court reported at [1988] 25 JLR 274 at 275 in which the following was held:

• "(ii) the cases establish that a jury must be warned against the danger of acting upon the uncorroborated evidence of the victim of a sexual assault and this rule applies with equal force in cases where the only live issue is identification.

• (iii) a judge sitting alone in the trial of any sexual offence should state or make it clear in his summation, which is for the benefit not only of the parties before him but also for the assistance of the appellate court, in the event of an appeal, that (a) he has in mind the dangers of convicting on the victim's uncorroborated testimony, and (b) nevertheless, he is satisfied, so that he feels sure, that she is speaking the truth.

• (iv) the trial judge did not at any time advert to the rule or indicate that he was conscious of those dangers but nevertheless felt sure that Miss X was speaking the truth and accordingly his verdicts on counts for rape and attempted rape cannot stand."

9 In coming to this conclusion, the Court followed dicta in a trilogy of cases R v. Sawyers [1959] 43 Cr. App. R. 187, R. v. Clynes [1960] 44 Cr. App. R 158 and R. v. Trigg [1963] 1 W.LR. 305.

10 Here is how Carey, J.A. who delivered the judgment of the Court dealt with the issue at page 280:

"There can be little doubt that the cases establish that a jury must be warned against the danger of...