Reliance Group of Companies Ltd v Ken's Sales and Marketing Ltd and Christopher Graham
| Jurisdiction | Jamaica |
| Judge | PHILLIPS JA |
| Judgment Date | 15 April 2011 |
| Neutral Citation | JM 2011 CA 36,[2015] CA Bda 1 Crim |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CRIMINAL APPEAL NO 110/2009 |
| Date | 15 April 2011 |
SUPREME COURT LIBRARY KING STREET KINGSTON, JAMAICA
[2011] JMCA Crim 19
Fling Cabinet
JAMAICA
IN THE COURT OF APPEAL
THE HON MRS JUSTICE HARRIS JA
THE HON MR JUSTICE DUKHARAN JA
THE HON MISS JUSTICE PHILLIPS JA
SUPREME COURT CRIMINAL APPEAL NO 110/2009
Andrew Campbell for the applicant
Mrs Karen Seymour-Johnson and Mr Brodrick Smith for the Crown
This is an application for leave to appeal against conviction. The applicant was charged with four counts on an indictment of two counts of illegal possession of firearm and two counts of rape. The particulars in respect of counts one and three are that on a day unknown between 1 and 31 July 2008, the applicant had in his possession a firearm not under and in accordance with the terms and conditions of a firearm user's licence for counts two and four in respect of rape, the particulars are that he, on a day unknown between 1 and 31 July 2008 in the parish of Saint Andrew, unlawfully had sexual intercourse with the complainant without her consent.
The applicant was tried in the Home Circuit Court on 24 and 25 August 2009 and convicted on all four counts and was sentenced on 2 October 2009 to seven years imprisonment at hard labour on each count. On 25 October 2010, a single judge of this court reviewed his application for leave to appeal and refused it. The application for leave to appeal was therefore renewed before us. On 25 March 2011, we made the following order:
‘The hearing of the application for leave to appeal against conviction is treated as the hearing of the appeal. The appeal is allowed. The conviction and sentences are quashed. A judgment and verdict of acquittal entered. In the interests of justice a new trial is ordered.’
These are the reasons.
Background facts
The prosecution adduced evidence from two witnesses: the complainant and Detective Verrón Johnson. The applicant gave sworn evidence and called three witnesses in support: his sister, his mother and his cousin..
The prosecution's case was that the applicant on the two occasions referred to in the indictment, had in his possession a firearm which he pointed at the complainant and having done so, had sexual intercourse with her without her consent.
This case was ultimately decided purely on a question of law, and as a new trial was ordered, we will set out the facts as briefly as possible.
The complainant is a student and the applicant is her cousin. The complainant's version of events is that the applicant had unlawful sexual intercourse with her, without her consent, on two occasions, one week apart, at a house which was largely unoccupied, and which was owned by the applicant's sister. The complainant said that on both occasions the applicant had a gun.
Initially the complainant did not report the matter to the police as the applicant had told her that ‘if mi tell anybody him a go kill mi’. She gave evidence of reporting the matter to the police after an incident with her mother who took her to the station as she (the mother) said she had been hearing talk in the area and she wanted to find out if it were true. The complainant told the court of her mother threatening her with a stone and telling her to leave their home and go to her father. She thereafter left the house and stayed at her cousin's house, which was where she slept the night before she actually went to the police station.
Detective Sergeant Verron Johnson, who was attached to the Centre for the Investigation of Sexual Offences and Child Abuse (CISOCA), gave evidence that after interviewing the complainant and her mother, she later cautioned the applicant, arrested and charged him for the offences of illegal possession of a firearm and carnal abuse. She said that his response was, ‘Me never have sex from me born, because me have skin problem. Me have skin problem and me can't let anyone see me naked’.
An unsuccessful no-case submission having been made on behalf of the applicant, he gave sworn evidence and confirmed that he knew the complainant who was his cousin, but he denied that he ever ‘put his penis in her vagina’ and that he ever had a firearm. He also denied ever having threatened her. He agreed that he had told the police that he had a skin problem which he said that he had had for about three years.
As indicated, the applicant called three witnesses, his younger sister, his mother and his cousin, none of whom could give any direct evidence about the two incidents in respect of which he had been charged.
The appeal
Counsel for the applicant Mr Andrew Campbell indicated that there were originally four grounds of appeal, (a) – (d). The original grounds (a) and (b) were not abandoned and are set out below. Ground (c) was subsumed by the amended ground of appeal nine and ground (d) was subsumed by the amended ground of appeal one.
The original grounds (a) and (b) are:-
‘(a) There was no corroboration of the Crown's case.
(b) The Crown's witnesses challenged the credibility of the Crown's case.’
Counsel filed, requested and was granted permission to argue nine amended grounds of appeal. These are as follows:
‘1) It is necessary to examine on voir dire all children under the age of fourteen years old when they are presented as witnesses and the learned trial judge's failure to establish the complainant's competence as a witness by voir dire was fatal to the conviction and sentence of the applicant.
2) The applicant has been denied the right to a fair trial, subject to Section 20 of the Jamaican Constitution.
3) The learned trial judge throughout the course of the trial conducted the proceedings in a manner which prevented the Appellant from having a fair trial in that on numerous occasions during the evidence-in-chief and cross-examination of the witnesses for the prosecution, he repeatedly and consistently intervened and obstructed the responses of the witnesses and supplied evidence (i.e. put words into the mouths of the witnesses), which was accepted by the said witnesses for the prosecution and formed a part of the evidence.
4) That the Learned Trial Judge erred throughout the course of the trial by making interpolations and interventions, as well as comments, remarks and observations to and of Defence counsel which were intimidatory, with the result that the Appellant's defense was severely hampered.
5) That the Learned Trial Judge erred in that throughout the course of the trial he descended into the arena and by his interventions and participation in the proceedings became prosecutor and advocate as well as leading witness for the Crown, with the result that the adversarial nature of the entire trial was totally and completely eroded.
6) That the Learned Trial Judge's failure to recognize the element of duress under which the complainant first made her complaint and not to address this was a material misdirection of his own jury mind.
7) The Learned Trial Judge's verdict was inconsistent with his findings of fact.
8) The Learned Trial Judge's findings that reconciled the inconsistencies in the complainants” (sic) evidence and previous statement to the police, by finding it was as a result of a (sic) incorrectly prepared statement by the Investigating Officer is legally redundant. If it were so, it would result in such an insurmountable prejudice to any defendant in that they (sic) could never properly prepare a Defense. The constitutional right to fair trial would have been breached ab initio and any prosecution or conviction on those grounds would automatically fail.
9) The actions of the trial judge and the Crown have so prejudiced the case to the detriment of the applicant so as to render it unfair and manifestly unjust in all the circumstances.’
These grounds cumulatively fell into four main areas of contention:
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(1) The complainant was a child of tender years and it was necessary to examine on voir dire all children under the age of 14 years when they are...
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