Traverse v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Gordon, J.A.
• Judgment Date: 02 October 1995
• Neutral Citation: JM 1995 CA 47
• Docket Number: Criminal Appeal No. 113 of 1994
• Date: 02 October 1995

Court of Appeal

Forte, Gordon and Patterson, J.J.A

Criminal Appeal No. 113 of 1994

Traverse

and

Regina

Appearances:

Mr. Terrence Williams for appellant

Miss. Audrey Clarks for Crown

Criminal Practice and Procedure - Directions to jury on corroboration in case of carnal abuse — Sentence of six years imprisonment at hard labour and six strokes with a rod of tamarind switches was imposed — Whether the trial judge erred in law in failing to direct the jury that there was no corroboration — Finding of the court that there was substantive corroboration and that if the conventional warning had been given the jury would inevitably have convicted the appellant — Exceptional case where the proviso to s.14(1) of the Judicature (Appellate Jurisdiction) Act would apply — Appeal was dismissed.

Gordon, J.A.

1 At the conclusion of submissions in this appeal we dismissed the appeal and confirmed the conviction for carnal abuse entered on 13th October, 1994 and the sentence of six years imprisonment at hard labour and six strokes with a rod of Tamarind switches imposed. We ordered that the sentence should commence on 21st November, 1994. As promised then we now record the reasons for our decision.

2 In the early evening of the 4th July, 1993, in the parish of Westmoreland the mother of a six year old girl “Jane Doe” left her and her baby sister in the care of the appellant with a request that he put the baby to sleep. This was an exercise that this appellant, a trusted neighbour, had undertaken before. The mother then went to her shop nearby and subsequently sat watching the television. Strange sounds coming from the bedroom attracted her attention so she went there removing her shoes at the door and saw the appellant in bed with the two infants. The posture of the parties called for further investigation so she pulled off the covering sheet and found “Jane” lying on her stomach legs apart, with her panties displaced and wet at the crotch. A wet rag was between the legs of the child.

3 She asked the applicant what was afoot and his negative response not found satisfactory she asked him to turn over as he then lay on his stomach. She said his voice sounded nervous and he was trembling. He refused and she forcibly spun him over and he was exposed with his trousers zip down and his penis erect protruding from the open fly.

4 Incensed, the mother rained blows on the appellant who appealed to her not to make any noise and suggested they could talk it over. She made an alarm while striking him and righting himself he fled through a window. He was chased held and handed over to the police.

5 “Jane Doe” testified giving details indicating how the appellant had sexual intercourse with her. Her panties the rag and vaginal swabs and smears taken from her were subject to examination by the Government Analyst. Evidence was given of semen and spermatozoa found on the crotch of her panties and blood in the vaginal swab. The doctor who examined “Jane” found an absence of her hymen and a discharge from her vagina. He was of opinion that sexual intercourse had taken place but was unable to say when it had happened.

6 The appellant denied committing the offence. He said he was not lying in bed when “Jane's” mother returned but standing by it and he was reading a bible story. “Jane's” mother he said enquired how she was in that condition but he took no note of what she talked about. She left with “Jane” returned and began to beat him. He made good his escape from the house.

7 Leave to appeal was given on the basis that the:

“Directions on corroboration were unsatisfactory. Warning as to the danger of convicting on the uncorroborated testimony of young children as also of convicting on uncorroborated evidence in sexual offences not pointed out to the jury. Judge failed to identify whether or not there was corroboration.”

8 The grounds of appeal followed the lead given above and added that the learned trial judge erred in law in failing to direct the jury that there was no corroboration. Mr. Williams in a spirited presentation made his submissions and provided the authorities on which he relied in support of his prayer that the appeal be allowed and the conviction quashed.

9 The passage in the summing up challenged for its inadequacy appears at page 4 of the transcript and runs thus:

“Now, experience has shown us that evidence given by children, particularly in young children, is not always reliable, so it is dangerous to convict on sworn evidence unless corroborated. Corroboration means evidence in a case against the accused which is confirmed in some material particular, not only that the crime has been committed, but that the accused committed it.”

10 This definition of corroboration we readily accept is not classic but it contains the essential ingredients applicable to this case. In sexual offences the definition is tri-partite:

• (a) commission of the sexual act,

• (b) absence of consent,

• (c) act committed by accused.

11 This case being one of carnal abuse the issue of consent does not arise and in that (a) and (c) above are incorporated in the definition it is in our view adequate to convey to the jury what the law requires. “Jane Doe” gave sworn evidence and the trial judge's direction on the evidence given by young children was given in the context of this case. The jury had to so consider it. It was not couched in usually recited terms but it was sufficient to alert the jury to the dangers inherent in the testimony of young children and the need for corroboration.

12 It was suggested to “Jane Doe” in cross examination that she told the court what she had been instructed by her mother to say. She denied this. She said she had been instructed to tell the court what happened. In dealing with this in his summation the trial judge told the jury at page (8.):

“you have to view this evidence very carefully. Remember the warning I gave you. From the evidence which “Jane” gave you, is she a child capable of belief? She told you her panty was drawn half way. The mother came and supported it. Further we have something coming from the Government Analyst who said she found semen in the panty. The doctor told you also that he found no hymen. You must ask yourself the question, how did this...