Sealy v The Queen
| Jurisdiction | Barbados |
| Judge | Moore, J.A.,Mason, J.A.,Gibson, C.J. |
| Judgment Date | 04 March 2015 |
| Neutral Citation | BB 2015 CA 3 |
| Docket Number | Criminal Appeal 16 of 2012 |
| Court | Court of Appeal (Barbados) |
| Date | 04 March 2015 |
Court of Appeal
Gibson, C.J.; Moore, J.A.; Mason, J.A.
Criminal Appeal 16 of 2012
Mr. Sacha Kissoon and Mr. Philip A. McWatt for the appellant
Mr. Lancelot Applewhaite for the respondent.
Criminal Practice and Procedure - Rape — Appeal against conviction and sentence — Whether the trial judge erred in failing to hold a voir dire where the appellant denied making oral statements attributed to him by the police — Whether the trial judge allowed a miscarriage of justice to occur when the police to read unauthenticated statements attributed to the appellant into evidence in contravention of section 73 of the Evidence Act — Leave to read aloud from notebook — Whether the trial judge was correct when it prevented counsel for the defence from cross examining a medical doctor relating to the absence of the hymen having considered the provisions of Section 26 of the Sexual Offences Act, Cap 154 where the issue of the case was whether the appellant had ravished the complainant — Whether the failure to indicate to the jury that the offence of rape had not been fully corroborated by the oral statements of the accused made the conviction of rape unsafe where the appellant would have suffered no prejudice as the judge had given the jury a clear direction on the point — Warnings to jury — Consideration of how to treat incriminating oral statements attributed to the appellants by the police — Finding that the verdict of rape and sentence should be set aside and a verdict of indecent assault and the maximum sentence for indecent assault substituted.
On 27th September, 2011 the appellant was convicted for the rape of C, a six year old female and on 11th September, 2012 he was sentenced to six years imprisonment. He has now appealed against conviction and sentence.
The appellant and C's parents were neighbours. The appellant used to visit their home and drink with her father. Sometime between 1st and 31st August, 2007 C's mother, M, was at home recuperating from surgery. On one of those days the appellant offered to purchase a meal for M from the nearby “cookshop”. M accepted the offer and consented to C accompanying the appellant. The appellant took C to his house where she alleged that he performed certain sexual acts upon her.
Meanwhile, M became concerned at the length of time the appellant and C were away and M went to the appellant's house in search of C. M called out for C but C did not answer. The appellant and C were still in the appellant's house and C said that the appellant told her that if she told anyone he and she would no longer be friends. She also said that she was afraid.
Having had no reply from the appellant's house M returned to her house. She made enquiries of other neighbours but to no avail. She later found the appellant and C in a rum shop near her residence.
On a later date M, C and a friend of M went on a beach picnic. Whilst there C told M's friend about the incident at the appellant's house. The friend told M what C had said. The matter was reported to the police. The appellant was interviewed by the police and was later arrested and charged with the rape of C.
The appellant filed six grounds of appeal. Grounds 1 and 2 arc as follows:
Ground 1
“The Learned trial Judge erred in failing to hold a voire dire and therein consider any of the factors set out under Section 145 of the Evidence Act when dismissing defence counsel's objections to the prosecution's application that PC 1201 Springer being granted leave to read into evidence unauthenticated statements attributed to the accused which he recorded in his official notebook.”
Ground 2
“The learned trial judge allowed a miscarriage of justice to occur when she permitted PC 1201 Springer and PC 1455 Broomes to read unauthenticated statements attributed to the appellant into evidence in contravention of Section 73 of the Evidence Act; and/or in the alternative, in the-event that this Honourable Court finds that such a discretion was available to the learned trial judge, such discretion was exercised unreasonably in this case, as it in essence amounted to a circumvention of the protection afforded to the accused under Section 73 of the Evidence Act”.
With regard to the contention on ground 1 that the trial judge failed to hold a voir dire, the appellant denied having made the oral statements attributed to him by the police. That being so it became a question of fact for the jury to decide. A voir dire was therefore not necessary.
Except for the contention mentioned in paragraph 7 above, the substance of those grounds was extensively canvassed before, and considered by, the Caribbean Court of Justice (CCJ) in Julian Oscar Francis v. The Queen CCJ Appeal No. Cr. I of 2008 ( Francis). Alter a full and exhaustive discussion of the issues the CC); said at paragraph 32:
“In the result, the first ground of appeal which relates to the oral admission allegedly made by the appellant, fails.”
This Court is bound by decisions of the CCJ and no useful purpose would be served by our traversing settled principles. Notwithstanding that, we feel compelled to make a few observations.
In Francis, the CCJ left open the question whether permission for the witness to refresh his memory from his notebook includes permission to read aloud what is written therein.
The witness is allowed to refresh his memory from his notebook because he says that he cannot remember the exact words used by the accused. Whether he then closes his notebook and gives his evidence or reads aloud from his open notebook he must, if required, show his notebook to counsel. The notes must be exact and contemporaneous. It therefore seems to be a futile exercise in pedantry to restrict what is really one simple exercise of opening the notebook at the exact page and reading aloud the statement.
In this jurisdiction we have always treated the ipsissima verba attributed by the police to the accused/appellant to be of the utmost relevance in determining the veracity of the police witness — not only that he recorded the exact words said, but, also that he did so contemporaneously. It has therefore always been the practice in this jurisdiction for the police witness to be allowed by the Court to read aloud from his notebook, the words he attributed 1:0 the accused/appellant, and, said to have been recorded by him, the policeman. The practice of refreshing memory is now enshrined in section 30 (1) of the Evidence Act, Cap. 121 (Cap. 121) without the abolition of the practice of reading aloud. Had Parliament intended to abolish this age old practice it would have been specifically done in Cap. 121. On the contrary, the right to read aloud has been preserved by subsection (3) of that section.
We recruit the human being, train him, call him “Policeman”, and clothe him with authority to protect society (including the miscreant, evil doer, he bent on mischief, the good, the bad and the ugly). With full knowledge that the policeman, being human, is subject to all human failings, we arm him with a notebook and pencil with which to record events, including the ipsissima verba of those other humans who communicate orally with him; and thereby make it possible for him to keep an accurate note of his daily activities. When he gives evidence before the Court and relies on the contents of his notebook we say, “Mr. Policeman, you are a liar”. We test his veracity by appointing a jury to judge the truth or otherwise of his evidence. When the jury uphold the veracity of the contents of the policeman's notebook we say, “The jury's verdict was perverse”.
This predilection to keep the laws of evidence under the microscope of legal scrutiny is admirable testimony to our quest to ferret out the truth and keep the law of evidence relevant. It is not new. Writing on the question of the reform of the law of evidence in 1968 in the Second Edition of “An outline of the Law of Evidence”, Rupert Cross and Nancy Wilkins said at page 11:
“Much of the law of evidence was brought into existence to meet the requirements of a past age. It was right that there should be rigid exclusionary rules when the parties were not allowed to testify and when almost every common law trial took place before an illiterate jury but it is not so clear that there is need for all the elaborate rules of evidence at the present day. This is what a Queen's Counsel has to say about the English law of evidence.”
“Founded apparently on the propositions that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are presumptively forgeries, it has been added to, subtracted from and tinkered with for two centuries until it has become less of a structure than a pile of builders' debris.” (See the Advocate's Devil by C.P. Harvey, Q.C. at page 79).”
The policeman gives his evidence on oath. His evidence in chief is then tested by cross-examination. On the other hand it is the rule, rather than the exception, (as in this case), for the accused to make an unsworn statement from the dock. That unsworn and untested statement is accorded the same status and fair treatment as is accorded to the sworn and tested evidence of the police witness. That is why there are checks and balances built into the system; trial by jury. In a criminal trial the witness is subject to the scrutiny of judge and jury who in turn are subject to a two tier appellate process. In Barbados today jurors are highly literate, many being university graduates. They are selected from among civil servants, bank officials and other lay professionals. Perfection awaits us in heaven; on this earth we must do the best we can.
In the final analysis, the law must be so applied as to ensure that the entire community is protected. We must, therefore, not be...
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