Rashane Desouza v R
| Jurisdiction | Jamaica |
| Judge | Laing JA (AG) |
| Judgment Date | 20 January 2023 |
| Neutral Citation | JM 2023 CA 3 |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO COA2020CR00001 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
[2023] JMCA Crim 1
IN THE COURT OF APPEAL
THE HON Miss Justice P Williams JA
THE HON Mr Justice Fraser JA
THE HON MR Justice Laing JA (AG)
SUPREME COURT CRIMINAL APPEAL NO COA2020CR00001
Miss Melrose Reid instructed by Melrose G Reid & Associates for the appellant
Miss Paula Llewellyn KC and Dwayne Green for the Crown
On 20 September 2019, after a trial before a judge (‘the learned trial judge’) sitting with a jury in the Home Circuit Court at King Street in the parish of Kingston, Rashane Desouza (‘the appellant’) was found guilty on an indictment charging him with the offences of indecent assault (count 1), and rape (count 2). He was found not guilty of assault for which he was charged on count 3 of the indictment. On 19 December 2019, he was sentenced to three years and two months’ imprisonment for indecent assault and for rape he was sentenced to 15 years’ imprisonment with the stipulation that he serves 10 years before being eligible for parole. The sentences were ordered to run concurrently. The learned trial judge also issued a certificate pursuant to section 42K of the Criminal Justice Administration (Amendment) Act 2015, the effect of which will be addressed in this judgment.
The prosecution relied on five witnesses; the complainant, the medical doctor who examined her, the complainant's cousin Christopher Johnson, Detective Sergeant Tricia Johnson, and Sergeant Carron Taylor the investigating officer. The appellant at his trial gave sworn evidence in which he raised consent as his defence. He called one witness, Malik Hamilton. The main issue at trial was one of credibility.
The appellant applied for leave to appeal his conviction and sentence. His application was considered by a single judge of this court who granted leave to appeal against the sentence only. The appellant, as is his right, has renewed his application for leave to appeal his conviction before this court.
In this appeal, we were not provided with the full transcript of the trial. We only had access to the portion of the trial relating to the learned trial judge's summation and the sentencing. The facts outlined below are as gleaned from the learned trial judge's summation and the submissions on behalf of the parties.
On 28 June 2017, the complainant, a student at the Stony Hill HEART Academy who lived in the student dormitory, was coming from a class at that institution at approximately 7:00 pm. She saw the appellant whom she knew and considered to be a friend. He had in the past told her that he liked her, but she told him that she was only interested in being friends with him. He was with two of his male friends and he told her that he was going for a walk. He invited her to join him. She agreed. She went and placed her bag in her dormitory and left the campus with the appellant and his friends. They went to Rocky's bar in Stony Hill. While there, the appellant offered her a drink and she had a Malta (which we understand to be a non-alcoholic beverage).
The complainant accompanied the appellant when they left the bar to visit his aunt. They later returned to the bar and re-joined the appellant's two friends. The complainant asked the appellant if there was a bathroom. He said yes and offered to show it to her. She followed him through a passage inside the bar to a door with a grille. The appellant opened the grille and the door and turned on the light. The complainant entered the room behind him, and he closed the door. Inside the room, there was a bed and a fan. The appellant tried to kiss and hug her, but she pushed him off. He pulled a knife from his waist “held it to her” and told her that if she made any noise, he was going to hurt her.
He pushed her down onto the bed and “went over her” with the knife. He put his hands in her brassiere and started to fondle her breasts. She told him to get off and was pushing him away, but she said he was strong and still had the knife. He kept saying that if she made any noise, he would use it to hurt her. The appellant was trying to pull down the loose-fitting one-piece garment that she was wearing as pants, while she was trying to pull it back up. They were wrestling with her clothes and after a minute, the complainant said she gave up. Her clothes came off. The appellant then took out his penis and had sexual intercourse with her against her will.
The complainant asked the appellant to be let out through the back door because she did not want anyone to think that she had done something wrong. She went back to her dorm and texted her cousin Christopher Johnson and told him that a guy just raped her.
The evidence of the complainant's cousin constituted a recent complaint and he confirmed that she made a report to him that she was raped. His evidence was, therefore, only admitted to show consistency in the complainant's conduct and was not probative of a rape having occurred. The evidence of the doctor was equivocal, in that it was equally consistent with consensual and non-consensual sexual intercourse. To this extent, nothing turned on it. Also, nothing of significance turned on the evidence of the police officers, save that the complainant made a report to Sergeant Carron Taylor on 29 June 2017, the day after the incident and he also carried out a search of the appellant's locker during which a knife was found.
The appellant gave sworn evidence in which the defence of consent was raised. He stated that in June 2017 he was a student at the Stony Hill HEART Academy. He met the complainant who was also a student there and a relationship developed and they were “boyfriend and girlfriend”. They would communicate via texts and WhatsApp messages and (telephone) calls. She also sent him pictures.
On the day in question, the complainant, two of his friends, and himself went to Rocky's bar after 7:00 pm. He spoke to his cousin who was running the bar. He also went to speak to an aunt and his grandmother. The complainant accompanied him and he introduced her to his aunt.
They went back to the bar and the appellant ordered drinks for all of them. He and the complainant discussed having sex, and she asked if there was a private room that they could use. He told her that he could arrange that. He said that they both went into a room, and they had sex. He said he did not force her to have sex with him, nor did he hold a knife to her or threaten her, in fact, he did not have a knife when he went to the bar. He denied forcibly pulling down her clothes. He said after they had sex, the bar had gotten crowded, and he asked her if she wanted to exit around the back. She went through (a door) at the back and came around and met him in the bar, where they rejoined the other two friends.
On their way back to school he stopped at a gas station and asked the complainant what she wanted, and she said she only needed a $200.00 Digicel phone card. He said that on the journey from the bar to the gas station, to the dorm, they were all laughing and talking, and they passed the police station on the way back to the dorm. They checked back onto the campus at the same time and reached the dorm at the same time.
The appellant said that he and the complainant spoke when they got back to campus, and she told him that she needed $2000.00 to get a morning-after pill. He told her that he did not have any more money on him but that he would get it to her Thursday evening, and she said that Thursday evening would be too late. He said that she said she wanted it now and that if he did not give it to her now, she would make his life miserable.
The next day while the appellant was in class, a member of the school administration approached him, and he was asked to follow her to the office. Members of the Jamaica Constabulary Force spoke to him at the school, and he was asked if he owns a knife. He admitted that he did. He consented to the search of his locker, and they went to the dorm where he handed over the key to his locker. A search was done of his locker and a knife was recovered. He explained that he used the knife to peel oranges and pine and to open tins of milk. It was openly used, and others would have seen him using the knife. He said he never took it in public (which we understand to mean off-campus) and he never carried it in his waist. It was also kept in his locker and when it was not in the locker it would be in his pocket.
During cross-examination, he said a relationship between himself, and the complainant started after he began school on 4 June 2017. He met her in June 2017 and the relationship started as soon as they met. They were in a relationship for three to three and a half weeks at the time of the incident. He denied that he told her that he liked her, and that in response she said that she only wanted them to be friends. He said that was the first time they went out and his friends knew they were in a relationship. He admitted that the complainant's reaction was very odd with her “crying rape” at the end.
The evidence of Malik Hamilton was that they went to the bar together, and while there the complainant and the appellant left and went around the back for about 15 minutes or more. They returned and they all made their way back to campus. On their way back to the campus they stopped at the gas station and the appellant bought a juice for himself and two phone cards, one of which he gave to the complainant. He says the mood was friendly and he did not see anyone crying and no complaint was made. He did not see the appellant with a knife that night at the bar or whilst they walked. He denied the suggestion that everyone did not leave the bar together and that the complainant left ahead of them.
The appellant was granted permission to abandon the...
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