Doyle v The Queen
| Jurisdiction | Barbados |
| Judge | Williams, J.A. |
| Judgment Date | 14 December 2010 |
| Neutral Citation | BB 2010 CA 23 |
| Docket Number | Crim. App. No. 22 of 2008 |
| Court | Court of Appeal (Barbados) |
| Date | 14 December 2010 |
Court of Appeal
Williams, J.A.; Moore, J.A.; Mason, J.A.
Crim. App. No. 22 of 2008
Sir Richard Cheltenham Q.C., Mr. Marlon Gordon and Ms. Shelly-Ann W. Seecharan for the appellant
Mrs. Donna C.B. Babb-Agard Q.C., Deputy Director of Public Prosecutions and Mr. Elwood Watts, Crown Counsel, for the respondent
Criminal law - Rape — Conviction — Ten years' sentence — Appeal — Appellant pastor of church convicted of raping 13 year old girl — Whether trial judge adequately directing jury on alibi evidence — Whether warning given by judge on uncorroborated evidence of complainant defective — Whether judge erring regarding common law on recent complainant — Jury not specifically directed to give careful consideration to whether or not there was an absence of consent — Members of jury misdirected on material ingredient of offence making verdict unsafe and unsatisfactory — Criminal Appeal Act, s.5 — Power of court to replace jury's guilty verdict with one for another offence and to pass sentence in substitution — Verdict replaced by verdict of guilty of indecent assault — Three years' imprisonment imposed in substitution for 10 year sentence for rape.
The appellant, Pastor Jippy Joel Doyle, is an evangelist. On 31 July 2008, he was convicted of rape of a thirteen year old female member of his church, Dominion Life Centre, located at Haggatt Hall, St. Michael. On 31 October 2008, Keifer, J. sentenced him to ten years' imprisonment. The appeal challenges both the verdict of the jury and the sentence imposed by the judge.
We recite the evidence to the extent only that it is necessary to dispose of the appeal. On the morning of Saturday 12 May 2001, the day before Mother's Day, the complainant, whose date of birth is 18 December 1987, was at home by herself as her mother went to Bridgetown to purchase items for the upcoming Mother's Day celebrations. While her mother was away, the complainant received a voice message from the appellant to call him and in response she telephoned him and was told to do “something” for him which required her to go to his house. She went. He greeted her clothed only in a towel wrapped around his waist. He then showed her into a room to watch television while he apparently went to take a bath. When he returned he led her into a bedroom and put his hand around her waist and started to kiss her but she pushed him off. He came back unbuttoned and unzipped the complainant's short pants and she “stepped out” of her pants. He took off her panties and used his hands to open her legs. He then removed the towel from around his waist and put his penis inside her vagina. She was crying and she bled. She then went to the washroom and dressed. He told her that if her mother had returned home to tell her that she had gone to a friend. He gave her $20 and a bag of sweets and she left.
On 7 September 2001, the appellant was interviewed by the police in connection with the complaint made to them by the complainant's mother. The appellant told the police:
“I had no sexual relationship with [the complainant] at any time.”
The appellant gave extensive evidence on oath and was cross-examined by Mr. Charles Leacock Q.C., Director of Public Prosecutions (DPP), who represented the Crown at the trial. The appellant denied being sexually involved with the complainant. The essence of his position is to be found in an answer that he gave to his counsel, Sir Richard Cheltenham Q.C., at page 335 of the record:
“I did not see [the complainant] at any time during that day, and I would have left home, as I said, around ten thirtyish to go to my mother's, so I would not have been at my residence. I did not see her. I did not give her any instructions. I had no communication with her whatsoever.”
It is important to note in view of the subsequent discussion that that appellant not only denied the charge but put forward a defence of alibi to the effect that it was impossible for him to have committed the offence as alleged by the complainant.
The jury returned a unanimous verdict of guilty of rape after deliberating for 2 hours and 17 minutes.
On 12 January 2010, the appellant filed amended grounds of appeal which he was granted leave to argue. There were 16 grounds filed and we set out the grounds argued in the order in which submissions were made on them. Grounds 7, 9, 10 and 11 were not pursued.
A summary of the ground is as follows:
An alibi defence called for careful direction from the judge…she should have analysed the timelines of the prosecutrix relative to the period within which the alleged rape was committed and the timelines of the defence concerning the absence of the accused from his residence. The judge did not help the jury with the alibi evidence of the accused which was misapprehended. The misapprehended evidence might well have gone to the heart of the reasoning process of the jury and prejudiced the defence.
Sir Richard submitted that if the evidence had been properly analysed by the judge it would have disclosed that the appellant had left his home before the complainant was alleged to have gone there and therefore his defence of alibi was credible. Instead, the manner in which the evidence was presented to the jury left a thirty-five minute “window of opportunity” in which the appellant could have raped the complainant. This was a substantive ground of appeal on which the appellant's counsel relied as leading to “the inescapable conclusion” that the appellant could not have been responsible for the offence. We are therefore required to examine this ground in some detail.
The evidence of the complainant was that she left home “around 10:45” and was at the appellant's house “20 to 30 minutes after” or between 11:05 and 11:15 a.m.: page 166 of the record of appeal. P.C. Crishna Graham stated that the complainant reported that she was at the appellant's house between “11:15 and 13:00 hours” and Sgt. Wilma Farley stated that the complainant reported that she was there “between 11:30 and 13:00 hours”. We can therefore pin down the complainant's reported time of arrival at the appellant's house to between the time of 11:05 a.m. and 11:30 a.m. on the basis of her own evidence and on what Sgt. Farley and P.C. Graham said that she told them.
This is a convenient point at which to interject that Sir Richard drew our attention to the fact that the judge told the jury at page 646 of the record that “the timeline established for the alleged rape is 11:50 to 1:00”. He conceded that 11:50 may have been a typographical error but in any event the 11:50 time was more favourable to the appellant's alibi defence than the time of 11: 15 or 11:30 which was given by the police witnesses. There was therefore no prejudice to the appellant.
The appellant's evidence as to when he left his house was the subject of considerable controversy during the trial. The controversy arose from his answer to a question during the examination-in-chief by Sir Richard, which we set out from page 330 of the record as follows:
“Sir Richard: Now on 12 May 2001, do you remember the day?
[Pastor Doyle]: …I would have proceeded to my mother, approximately around eleven thirtyish, arriving there just before 11:00 and leaving there approximately 7:00 in the evening.
Sir Richard: All right. We will come back to that. Now what was your mother's name?”
It is obvious that the appellant could not have arrived at his mother's house before he left his own. It was not disputed that the evidence quoted above was an accurate record of what the appellant said. There seems to have been a genuine slip on his part and that no issue of credibility arose from the same. Unfortunately, this matter was not dealt with immediately by counsel but allowed to fester. It became an issue at the trial and has been presented as a major ground of appeal.
We know that the “eleven thirtyish” and the “before 11” times were wrong because the appellant later stated that he meant 10.30 instead of 11.30 as the correct time that he left home. He further stated “I would have left home, as I said, around ten thirtyish to go by my mother's”. However, the DPP in cross-examination wished to pin him down to the 11:30 time (at page 370 of the record). Doyle denied saying 11:30 but the judge confirmed that her note did record 11:30. The following exchange then took place at page 371:
“Sir Richard: That is my note too, my mental note. And the only reason I didn't deal with it is that he repeatedly returned to 10:30 and getting to her before 11:00, but it did happen.
The Court: It will be dealt with, Sir Richard, in terms of the direction because he said it.”
The significance, of course, of the timelines is that the appellant wished to show that he had left home by 10:30 before the complainant had come to his house at 11:05 (the earliest time that she alleged). On the other hand the prosecution wished to show that the appellant was still at the house at 11:30 which was the latest time according to the evidence of Sgt. Farley that the complainant said that she arrived at the appellant's house.
Counsel for the appellant impugned the jury's rejection of the alibi defence. He was critical of the judge's failure to precisely analyse the timelines and thereby claimed that the appellant's evidence was not presented in the most favourable light. However, he conceded that the general directions given by the judge in relation to alibi were sound in law.
Mr. Wafts replied to this ground of appeal by supplementing the respondent's skeleton argument with his oral submissions. It was submitted first, that the judge did repeat...
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