Woodall v R

• Jurisdiction: Barbados
• Judge: Waterman, J.A.,Williams, J.A.,Connell, J.A.
• Judgment Date: 29 November 2005
• Neutral Citation: BB 2005 CA 25
• Docket Number: No. 7 of 2002
• Court: Court of Appeal (Barbados)
• Date: 29 November 2005

Court of Appeal

Waterman, J.A.; Williams, J.A.; Connell, J.A. (Ag.)

No. 7 of 2002

Woodall

and

R.

Appearances:

Mr. Andrew Pilgrim and Mrs. Angella Mitchell-Gittens for the appellant Miss Manila Renee for the respondent

Criminal law - Serious indecency — Appellant convicted of serious indecency with 15 years old boy contrary to Sexual Offences Act, s. 12(2) — Appellant sentenced to 10 years imprisonment and appealing conviction and sentence — Appellant and complainant known to each other and trial judge not giving directions on identification — Whether trial judge giving inadequate directions on alibi — Whether insufficient warning given on absence of corroboration and age of complainant — Evidence Act, s. 102 — Guidelines regarding directions to jury — Verdict unsafe and unsatisfactory — Appeal allowed.

JUDGMENT OF THE COURT:

1 This is the judgment of the Court to which we have all contributed. On 26th February, 2002, the appellant, Allan Athelston Woodall, was convicted of committing an act of serious indecency contrary to section 12(2) of the Sexual Offences Act, Cap. 154 with a 15 year old boy, whom we will refer to as the complainant, and was sentenced on 8th March, 2002 to 10 years' imprisonment by Garvey Husbands, J. He has appealed his conviction and sentence.

2 The principal issue that arises in this appeal is whether it is necessary to direct the jury on identification in circumstances where the complainant and the accused are known to each other and where the defence is one of alibi. The judge directed the jury on alibi and stated that identification was an issue in the case, but he did not give the jury directions on identification. The respondent submitted that on the facts of the case no such directions were required.

II. THE PROSECUTION CASE

3 The complainant was a student and worked part-time as a checkout boy at a supermarket. On Friday 30th March, 2001, the appellant had a conversation with the complainant and two other male employees at the supermarket about making “blue movies” or sex films. The appellant told them that they had to do a test to ascertain that they had no diseases before they got started; the details of the test are not material to our decision. On Saturday morning 31st March, the complainant and the appellant had a conversation at the supermarket about the test.

4 The complainant saw the appellant on Tuesday 3rd April, 2001, walking in the vicinity of the supermarket. The appellant called the complainant and told him that he had to go to Speightstown to collect the money for the test, which the complainant understood to be $34,000.00. The appellant then told the complainant that they had to catch a bus, the appellant gave the complainant bus fare and they caught a bus sometime between 6:30 and 6:45 p.m. and alighted at Prospect, St. James. The appellant then took the complainant to a big building with tennis courts. “It was very dark”, but the complainant saw an abandoned house. The appellant told the complainant that he had to wait on a lady to bring the money. While the complainant was waiting at the gate, the appellant suddenly attacked him from behind.

5 The appellant “head-locked” the complainant put a knife to his throat and told him to do what he said or he would kill him. The complainant did as he was ordered. The appellant also told him to take off his clothes or he would stab him in his head. The complainant took off his clothes. The appellant then made the complainant suck his penis. The appellant then put him to lie on the ground and he then took his own clothes off. It was then that the complainant kicked him in his testicles and ran. At the time of the incident the appellant was wearing the Automotive Art jump-suit in which he worked.

6 The complainant caught a bus home and on arrival he told his mother what had happened. They both went to Holetown Police Station. On the following day, 4th April around 4:00 p.m., the complainant pointed out to the police the place where the appellant attacked him. He was later taken to a doctor who examined him. After leaving the doctor's office, the complainant, accompanied by three police officers and his mother, saw the appellant walking in St. James. The complainant spoke to the police, and they stopped the car in which they were travelling alongside the appellant, but the complainant did not give evidence of any conversation between himself and the appellant. It should be pointed out that the appellant effectively cross-examined the complainant with regard to a number of differences in the evidence between what the complainant told the magistrate in the preliminary inquiry and what he told the jury, as a result of which the judge admitted into evidence the depositions taken in the Magistrate's Court.

7 Sergeant Anthony Layne, attached to Holetown Police Station, stated that at about 12:15 p.m. on April 4th he and Constable Stacey Cummins were on duty in motor car MP 438 which was driven by Constable Scantlebury. The complainant and his mother accompanied them. They were travelling along Trents Road in a southerly direction when he saw the appellant walking along the same road. After the motor vehicle stopped, the appellant put his head through the left rear window of the car and the complainant said in a loud tone of voice, “He is the man that interfere with me last night”. Sergeant Layne said that he asked the appellant if he heard what the complainant had said and cautioned him. The appellant replied, calling the complainant by his first name, “What foolishness this?” However, it should be noted that in cross-examination the complainant denied saying anything to the appellant when the car stopped and the complainant's mother also stated in cross-examination that her son said nothing to the appellant. Constable Cummins, on the other hand, confirmed the evidence of Sergeant Layne in respect of the verbal exchange. There was therefore a discrepancy in the evidence for the prosecution between the police witnesses and the complainant and his mother.

8 Sergeant Layne also gave evidence of the other oral statements made to him by the appellant. The appellant when informed of his rights said, “I don't want a lawyer”; when he was told that a report was made against him in relation to the offence he said, “That is not true. The last time I saw the boy was Saturday” and when asked if he wished to make a written statement he said, “I don't think that is necessary”. He was asked to hand over the clothes that he was wearing on the night of April 3rd and he replied, “Sarge that is no problem. When you ready”. Sergeant Layne said that he took the clothes to the Forensic Sciences Centre.

9 Lorraine Alleyne, a Senior Forensic Scientist at the Centre gave expert evidence. She said that on 3rd May, 2001, Sergeant Layne delivered to the laboratory a blue overall with an Automotive Art logo across the back and a pair of grey and black short pants with the logo Excel Sport wear. Both pieces of clothing were soiled and stained. Both tested negative for the presence of blood and seminal fluid. Len Sehntwali, a Forensic Scientist at the Centre also gave expert evidence. He said that on 10th April, 2001, Constable Cummins handed over to him one anal swab and one buccal swab bearing the marks of the complainant. Both tested negative for the presence of spermatozoa. He also handed over one white T-shirt marked “Sailing Barbados” and one “cut-off' jeans of the complainant. Both tested negative for the presence of spermatozoa and blood.

10 The complainant's mother gave evidence that around 8:00 p.m. on 3rd April, her son returned home and reported to her that an unnamed man had attacked him. She went with him to Black Rock Police station and they were referred to Holetown Police station. The complainant's mother under cross-examination by the appellant said that the complainant told the police while being driven in the car that the man the car had stopped alongside in the road “looked like” the man who indecently assaulted him.

III. THE DEFENCE

11 The appellant's defence was one of alibi. At the trial, he was unrepresented by counsel and cross-examined the complainant to the effect that on 3rd April, he was not at the scene of the crime. The appellant elected to give evidence on oath, set out at page 102 of the record as follows:

“On the 3rd day of April, 2001, I leave my residence Gays, St. Peter at about 6:00 in the morning to go to work in Suttle Street with Earle Construction as a carpenter. On that day I worked ‘til 4:45 and then I went into the public bath, bathed and put back on the clothes which I was wearing. I went into the shop located in Suttle Street — Darcy Dear shop where I bought something to eat and remained there ‘till little after Days of Our Lives completed. Then I went to the bottom of the gap and was standing up with about 18 to 20 people and we were drinking at the bottom of the gap and I stayed there ‘til about a quarter to 11:00 that night – to a quarter to 12 that night and caught the midnight bus to Boscobelle. I did not go to St. James or to Black Rock on the 3rd day of April. That is it, sir.”

12 In cross-examination, the appellant admitted that he knew the complainant from the supermarket. He called two witnesses who gave evidence that they were with him at the shop on the night of the incident.

IV. ISSUES IN THE APPEAL

13 Mr. Andrew Pilgrim on behalf of the appellant filed nine grounds of appeal. It is necessary for us to consider only three issues arising out of the grounds in order to dispose of the appeal:

• (i). Alibi: the trial judge's directions on alibi were inadequate;

• (ii). Identification: the trial judge erred in law in that his directions on identification were inadequate and confusing, he failed to tell the jury that an honest and credible witness could be a mistaken witness and to warn the jury about the possible...