Bayley v The Queen
| Jurisdiction | Barbados |
| Judge | Moore, J.A. |
| Judgment Date | 19 June 2015 |
| Neutral Citation | BB 2015 CA 10 |
| Docket Number | Criminal Appeal 2 of 2013 |
| Court | Court of Appeal (Barbados) |
| Date | 19 June 2015 |
Court of Appeal
Gibson, C.J.; Moore, J.A.; Mason, J.A.
Criminal Appeal 2 of 2013
Mr. Andrew Pilgrim, Q.C., and Mrs. Angella Mitchell-Gittens for the appellant
Mr. Elwood Watts for the respondent
Criminal Law - Kidnapping — Rape — Appeal against conviction and sentence — Whether the trial judge correctly defined the elements of the offence of kidnapping and adequately directed the jury having considered the full summation — Whether the trial judge correctly directed the jury on circumstantial evidence and on alibi — Whether the trial judge correctly directed the jury on the issues of discrepancies and inconsistencies — Standard direction on discrepancies in Scantlebury v. R Criminal Appeal No. 34 of 2002 (unreported) — Whether the trial judge adequately put the defence of the accused — Queries from the jury — Whether the trial judge adequately directed the jury after the jury had failed to reach a unanimous decision — Whether the convictions were safe and satisfactory having considered the adequacy and thoroughness of the summation coupled with the jury's assessment of the witnesses combined to produce a fair and just trial — Appeal dismissed and convictions and sentences affirmed.
The appellant was tried by judge and jury and convicted on the two counts in the indictment: one of kidnapping, contrary to section 30 of the Offences Against the Person Act, Cap. 141 (Cap. 141); and the other of rape, contrary to section 3(1) of the Sexual Offences Act, Cap. 154. On 6 February, 2013 he was sentenced to 3 years imprisonment for kidnapping and 7 years imprisonment for rape.
On 11 October 2002, about 7:45 p.m., the complainant left her home at Passage Road in the parish of St. Michael to walk to the home of her boyfriend at Rosemont, Black Rock in the said parish. Whilst walking along Barbarees Hill she saw the appellant sitting in his stationary motor car talking to Jason White who was standing beside the motor car. The complainant knew both men. The appellant was the brother of her ex-boyfriend and Jason White was her neighbour. She had a brief conversation with both men and continued on her way. The appellant quickly drove off and stopped his motor car next to the complainant and invited her to get into the motor car. She declined his invitation. The appellant then got out of the motor car, held the complainant and put her in the motor car. She said that he held her hand with one of his hands as he drove, using his free hand to control the motor car. She said he threatened to kill her if she told anyone anything. She said when he stopped she recognized the area as the Belle also in the parish of St. Michael. At the Belle, she said he pulled her out of the motor car, pushed her onto the ground in the mud and grass where he ravished her. When the appellant had finished she got up off the ground and ran to the nearby highway. There she saw a man riding a bicycle. That man took her to her boyfriend's house at Rosemont, to whom she reported her plight. It was then about 9:00 p.m. Her boyfriend took her to the police station at Black Rock. Later, at an informal exercise, she identified the appellant as her attacker.
The complainant's boyfriend testified that he had expected her to arrive at his house about 7:30 p.m. on the night in question but she arrived about 9:00 p.m. He said that when she arrived she appeared frightened, she was crying, her clothes appeared torn and there was mud on her clothes, her arms and her feet. She spoke to him and he took her by bicycle to the police station.
From the outset the appellant admitted having seen the complainant that night. He admitted that he gave her a lift in his motor car but said that he took her to the gas station at Black Rock. He denied that he had ravished her. The following is the appellant's written statement to the police:
“On Friday, 11th day of October 2002, I left home and I pass through Baxter's Road on my way, me and a fellow who I saw on Baxter's Road start talking and then I saw a girl that uses to talk to my brother, Mark Bayley, and she would use to visit my brother house where I also live. That is where I know her from. She asked me what direction I was going and I tell she Eagle Hall and she tell me she going Black Rock. I offer her a drop to the Black Rock gas station by Deacons. She get in the car and I put her off at the gas station. I then went back by Eagle Hall at Cammie Shop where I cool out and had some drinks. I left the shop after 11:10 p.m. and went to St. George and pick up my girlfriend, Sandra Fields. I then went home and remain. I got witness that de woman get into my car, I didn't force her. I never had sex with that lady Sherry-Ann. I ain't went to no Belle at all.”
The appellant also gave an unsworn statement from the dock in which he denied having committed the offences and asserted that his statement to the police was true. The appellant's sole witness was Jason White who testified that he had seen and spoken to the appellant and complainant at Barbarees Hill.
The appellant has appealed against his convictions and sentences on seven grounds. We consider those grounds and the written submissions seriatim below.
This ground alleged that the directions given by the learned trial judge when defining the elements of the offence of kidnapping “were such that it would have led the jury to draw inferences unfavourable to the appellant”. In the written submissions counsel for the appellant submitted that the sentence, “She most evidently did not consent” uttered by the judge when explaining the ingredients of the offence of kidnapping would have caused the jury to conclude that the appellant had in fact committed that offence and, as such it amounted to a direction to the jury to convict the appellant.
Counsel for the respondent contended that a summation must be taken as a whole. He submitted that: “The trial judge started by giving a definition of the offence charged and then identified the relevant elements necessary to establish the offence …” He supported that submission by pointing out extracts from the direction of the trial judge. He submitted that “there is no merit in this ground of appeal”.
It would seem that counsel for the appellant embarked on picking what seemed to her to be the plums and throwing away what seemed to her to be the duff. Counsel reached into the heart of a lengthy explanation by the judge of the offence of kidnapping and picked out the sentence: “She most evidently did not consent”, uttered by the judge when explaining the phrase “removing another from any place without that other's consent”, the ingredient in the offence of kidnapping. The judge had first read section 30 of Cap. 141 and then proceeded from line 12 of page 209 to line 14 of page 210 of the trial record to explain that ingredient. From line 24 of page 209 to line 14 of page 210 she said:
“If you examine and most importantly accept the case for the Crown you will find all four elements. You will find that there was a taking or a carrying away when Adrian Bayley forced, that is the second ingredient, Sherry-Ann Seale into his car on Barbarees Hill and carried her to the Belle. She most evidently did not consent. In fact, it is her evidence that she refused before he physically placed her in the car and nothing further need be said on the last ingredient. There was no lawful excuse for the action taken. This, I direct you, members of the jury, as a matter of law, if you accept the case for the prosecution this is a taking or carrying away in law. There was no consent, lack of consent is important because without it there is no lawful excuse. There was no lawful excuse and there was the use of force. These are the other elements referred to above.”
Counsel's submission that the judge's statement at “lines 8-14 of page 210 also indicates that the offense (sic) of Kidnapping has been established” failed to acknowledge the fact that the judge told the jury that they could only have reached that conclusion if they accepted the case for the prosecution. For these reasons, this ground is unsustainable.
Ground 2
Counsel for the appellant contended that:
“The Learned Trial Judge erred in law when she directed the jury that “it is not disputed that Fabian Waldron saw a man and a woman near Precision Packaging that night and that you can reasonably infer that it was Sherry Ann Seale and Adrian Bayley.”
She then summarized the evidence of Fabian Waldron and submitted that the:
“direction invited the jury to reject the alibi of the appellant, find that the virtual complainant was truthful and by implication convict the accused”.
In support of her submissions counsel cited: Martin v. R, [1972] 57 Cr. App. R 279 (Martin); Urquhart v. R., [1970] 54 Cr. App. R 369 (Urquhart); Lang v. R [1975] 62 Cr. App. R. 50 and Warner v. M.P.C [1976] 52 Cr. App. R 373 (Warner).
The Crown sought to rebut this ground by contending:
“A careful reading of the trial judge's direction does not suggest that the Court is making a finding of fact which is a jury function. The Judge is not saying to the jury how they are to deal with the evidence of Fabian Waldron. She is by no means dealing with the subject of inferences since she has already given a direction on that aspect of the trial”.
Counsel submitted that the judge was enumerating examples of circumstantial evidence and he supported that submission by reference to extracts from the relevant part of the summation.
Fabian Waldron testified that he was an employee of Precision Packaging, a company situate at the Belle, and about 8:35 p.m. he left his workplace by bicycle en route to Charles Rowe Bridge, St. George to buy a meal. He said that he saw a man and a woman standing next to a motor car. He saw the woman's face and she...
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