Richard Pearce v R

JurisdictionJamaica
JudgePanton P
Judgment Date11 November 2013
Neutral CitationJM 2013 CA 115,[2013] JMCA Crim 54
CourtCourt of Appeal (Jamaica)
Docket NumberSUPREME COURT CRIMINAL APPEAL NO 87/2008
Date11 November 2013

[2013] JMCA Crim 54

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice Harris JA

The Hon Mr Justice Morrison JA

SUPREME COURT CRIMINAL APPEAL NO 87/2008

Richard Pearce
and
R

Mrs Jacqueline Samuels-Brown and Nicholas Edmond for the appellant

Mrs Ann-Marie Feurtado-Richards and Miss Michelle Salmon for the Crown

CRIMINAL LAW - Carnal abuse - Whether trial judge erred in preventing the doctor from giving evidence - Whether appellant denied a fait trial

Panton P
1

The appellant, a constable in the Jamaica Constabulary Force, was convicted on 24 July 2008 of the offence of carnal abuse. The victim's date of birth was 22 December 1994 and the offence was committed on ‘a day unknown’ in December 2007.

2

The appellant was committed to stand trial in the Saint Thomas Circuit Court but, due to the destruction by fire of the legendary Morant Bay Court House, the trial actually took place in the Supreme Court building on King Street, Kingston. It was presided over by Donald McIntosh J, with a jury, and on 29 July 2008, the learned judge sentenced the appellant to five years imprisonment.

3

At the time of our dismissal of the appeal, we gave brief oral reasons for so doing and ordered that the sentence should run from 24 October 2008. We apologize for only now putting our reasons in writing.

4

Leave to appeal from the conviction had been granted by a single judge of this court on the basis that ‘the learned trial judge omitted to give the jury specific directions on how to treat with previous inconsistent statements’. We noted that no specific ground was advanced along those lines but we make no criticism of that fact.

The prosecution's case
5

The complainant was an eighth grade high school student. She was walking on the road in Morant Bay on a day in December 2007 when the appellant called to her. She responded and eventually went into the front seat of a car that the appellant was driving. This was during morning school hours and the complainant was dressed in her school uniform. The appellant drove and parked the car in a secluded lane. Prior to that, he had asked her if he could touch her hair but she had replied that she did not like people touching her hair.

6

While in the lane, the appellant adjusted the seat on which the complainant was sitting, removed her underwear, went over her and laid on her in the seat, and then proceeded to have sexual intercourse with her in that position. After this act, he gave her $100.00 and took her to her school. Later, the complainant noticed blood on her underwear.

7

The appellant was known to the complainant before the incident, and she had travelled in his car before that day. The appellant had a daughter who was in the same class as the complainant.

8

On 31 December 2007, a boy and two young men visited the premises where the complainant lived with her grandmother. The latter made a telephone call to the complainant's father who came and took her to the Morant Bay Police Station where the complainant made a report to the police of the incident involving the appellant. In her written statement to the police, the complainant stated that the incident took place in the afternoon on her way from school, and that the appellant took her to her taxi stand afterwards.

The defence
9

The appellant gave evidence in which he denied having sexual intercourse with the complainant. He admitted driving a ‘robot taxi’ and giving the complainant a ride in his car on a morning in December 2007. He had ‘picked her up’ at the bus terminus in Morant Bay. He had not known her before but she was with another girl whom he knew before. The complainant, he said, sat in the rear of the car whereas the girl he knew sat in the front seat. He noticed that the complainant's hair was ‘untidily’ and her clothes were ‘not in place’, and so he spoke to her about it. He let off both girls at about 9 a.m. at the school gate. He never saw the complainant again until when he attended at the Resident Magistrate's Court at Yallahs, apparently for the preliminary examination to be conducted into the case.

The grounds of appeal
10

The grounds of appeal were few but the complaints by the appellant were manifold. There were two original grounds. The first challenged the admission into evidence of the entire written statement given by the complainant to the police; the second ground complained that the summation of the learned trial judge was inadequate. However, these were not pursued — at least, not in the form in which they were filed. Indeed, instead, Mrs Jacqueline Samuels-Brown, counsel for the appellant, filed, argued and relied on four supplemental grounds. The third of these supplemental grounds listed 18 complaints of alleged ‘inadequate and/or unbalanced’ treatment of the evidence by the judge in his directions to the jury.

Supplemental ground 2
11

It is convenient to deal firstly with ground 2 of the supplemental grounds. It reads:

‘The Learned Trial Judge erred in preventing the doctor from giving evidence as to the history recounted to him by the virtual complainant as, inter alia,

  • a. A jury is entitled and ought to know the material on which an expert bases his opinion before being invited to accept such opinion.

  • b. The said material potentially contradicted the evidence of the complainant and to a probability was a previous inconsistent statement of the complainant, which the defence was entitled to expose and/or explore.’

12

Mrs Samuels-Brown submitted that as a matter of law the learned trial judge erred in preventing the doctor from giving evidence as to the history given by the complainant, as evidence potentially beneficial to the appellant was excluded. Thereby, she said, the appellant was denied a fair trial. Mrs Feurtado-Richards for the prosecution responded that the history of the complainant, if given in evidence by the doctor, would breach the hearsay rule. She cited the cases R v Turner [1975] 1 All ER 70 and R v Abadom [1983] 1 All ER 364 in support of her view that the learned judge was correct.

13

In R v Turner, it was held that an expert opinion was only necessary where the expert could furnish the court with scientific information that was likely to be outside the experience and knowledge of the judge or jury. That case was one in which the appellant had battered his pregnant girlfriend's head with a hammer thereby killing her. She had told him that the child she was carrying was not his as she had conceived after having been involved with two other men while he was in prison. He said he had lost his self control, did not realize what he was doing, and had not intended to harm her. His counsel sought to call a psychiatrist with a view to help the jury to accept as credible the appellant's account of the events, and to indicate why the appellant was likely to have been provoked. The judge indicated his wish to see the report that would indicate what the psychiatrist was likely to say in evidence. The report contained a long account of the appellant's personality and medical history as well as his family background. Some of the information had come from medical records; others had come from the appellant himself and from his family and friends. The trial judge ruled that the report was irrelevant and inadmissible as it contained “hearsay character evidence”. In delivering the judgment of the English Court of Appeal, Lawton, LJ said:

‘… all the facts on which the psychiatrist based his opinion were hearsay save for those which he observed for himself during his examination of the appellant such as his appearance of depression and his becoming emotional when discussing the deceased girl and his own family. It is not for this court to instruct psychiatrists how to draft their reports, but those who call psychiatrists as witnesses should remember that the facts on which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked.’ [page 73 c-d]

14

In R v Abadom, the English Court of Appeal maintained consistency by applying the principle in Turner and holding that when an expert witness was asked to express an opinion on a question, the primary facts on which that opinion was based had to be proved by admissible evidence given either by the expert himself or some other competent witness.

15

The evidence of the doctor in the instant case was simply that he examined the complainant on 31 December 2007 and found that her hymen was not intact, and that its breach was not recent. It should be noted that the cross-examination of the doctor by very experienced counsel for the appellant at trial, Mr Earle deLisser, lasted exactly one minute. It is recorded on page 45 of the transcript at lines 10–21. It reads thus:

TIME 2:38 P.M .

Q. Doctor, in coming to your findings you would rely on what the patient says to you, naturally?

A. Yes.

Q. And on this occasion you did spoke [sic] with the young lady?

A. Yes.

Q. And that is where you got the history from?

A. Yes, I did.

Mr. E. DELLISSER: I have no further question.

(Mr. E. Dellisser sits at 2.39 p.m.)’

16

The learned judge asked some questions resulting in the doctor saying that when the hymen has healed after a breach it is very difficult to determine when the breach has occurred. Normally, he said, it takes about two weeks to heal.

17

An examination of the transcript revealed that the doctor's evidence in chief as well as under cross-examination was not interrupted by the learned trial judge. He did not in any form or manner prevent the doctor from answering any question during those processes. As stated earlier, the learned judge asked some questions of his own, as he was entitled to do, and counsel for the defence when asked if he wished to question the doctor further, replied in the...

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1 cases
  • Leighton Rowe v R
    • Jamaica
    • Court of Appeal (Jamaica)
    • 22 Mayo 2017
    ...imprisonment after a trial (in Erron Hall v R [2014] JMCA Crim 42), to five years' imprisonment after a trial (in Richard Pearce v R [2013] JMCA Crim 54). 21 On the basis of this selective sample alone, it appeared to us that the sentence of 12 years' imprisonment imposed by the judge in th......

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