Duan Fred Appellant v The Queen Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS, JA,Justice of Appeal [Ag],Ola Mae Edwards,Davidson Baptiste
• Judgment Date: 26 March 2010
• Judgment citation (vLex): [2010] ECSC J0326-2
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCRAP 2006/011
• Date: 26 March 2010

[2010] ECSC J0326-2

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson Baptiste Justice of Appeal [Ag]

The Hon. Mr. Paul Webster QC Justice of Appeal [Ag]

HCRAP 2006/011

Between:

Duan Fred

Appellant

and

The Queen

Respondent

Appearances:

Mr. Ramon R Raveneau for the Appellant

Mr. Robert Innocent, Deputy Director of Public Prosecutions for the Respondent

Criminal Appeal — Rape — Section 238 of the Criminal Code 1992 — Appeal against conviction — whether unsafe or unsatisfactory — whether the failure to give a warning under section 136 Evidence Act 2002 was fatal to conviction — whether victim's uncorroborated evidence unreliable — whether the judge was obliged to give reasons for failure to give warning under section 136 — whether corroboration warning necessary despite section 135 — recent complaint evidence — exception to hearsay evidence — common law approach as opposed to statute — whether evidence of recent complaint in sexual assault cases admissible under Evidence Act 2002 as evidence of sexual intercourse and lack of consent to that intercourse — effect of failure to give warning under section 136 (2) in relation to recent complaint evidence —effect of failure to give any or a proper direction on expert evidence — effect of failure to give direction on deposition evidence in the absence of the witness — whether these failures of the trial judge were fatal to conviction — Appellant's defence of consent — mens rea for rape under the 1992 Criminal Code — honest belief — the appellant's state of mind (subjective test) —whether proviso should apply — whether re-trial should be ordered -

The appellant was convicted of rape contrary to section 238 of the Criminal Code 1992 and sentenced to 6 years imprisonment. He appealed against his conviction on the ground that it was unsafe and unsatisfactory. The prosecution's case was that on 28^th April 2003, the appellant had dragged the virtual complainant after she fell on the ground, from the roadway, over a ditch and into a banana field and had sexual intercourse with her without her consent; she was then 15 years and 9 months and the appellant 23 years old. After the incident on the same day the VC told her mother that the appellant had raped her. The appellant and the VC prior to the alleged rape had an intimate relationship. The VC's mother who disapproved of their relationship intervened, and on the prosecution's case was successful in breaking up this relationship which ended on the 18^th April 2003. The VC's mother testified at the trial as to what the VC told her, in terms which were different from the VC's evidence regarding what she told her mother. The appellant denied raping the VC and at all material times asserted that they had consensual sex while their relationship was still in existence. The grounds of the appellant's appeal alleged that the trial judge failed to give to the jury any directions or proper directions: (a) under section 136 of Evidence Act 2002; (b) or on evaluating of the deposition evidence of the doctor in the absence of the doctor: (c) on the expert evidence adduced by the prosecution; and (c) on the appellant's defence of honest belief that the VC consented. Section 136 of the Evidence Act 2002 requires that unless there are good reasons for not doing so: in cases where hearsay evidence is admissible to prove the existence of an asserted fact; and for the victim's evidence in sexual offence cases, the trial judge should warn the jury that the evidence may be unreliable, inform the jury of matters that may cause it to be unreliable, and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. The rules of construction in section 5 under the 1992 Criminal Code state that the Court shall not be bound by the Common law as to the definition of any offence or of any element of an offence under the Code. Almost 7 years had passed since the alleged offence, and the appellant would have completed serving his sentence of six years in November 2010, where the statutory one third remission is applied.

Held: allowing the appeal, quashing the conviction and discharging the appellant:

• 1. Evidence of recent complaint at common law "clearly is not admissible as evidence of the facts complained of: those facts must … be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains."

  R v Lillyman [1896] 2 QB 167 [1896] 2 QB 167 at 170 applied.

• 2. The common law rules on the probative value of recent complaint have been apparently discarded in St Lucia by virtue of the enactment of sections 48(2), 45(2), and 53 of the Evidence Act No. 5 of 2002; and the cumulative effect of these provisions on the evidence of recent complaint is that the statement made by the complainant to her mother would be admissible to prove the facts assertedin the recent complaint where the recent complaint is relevant in the sense of the provisions in section 45(2) of the Evidence Act i.e. it relates to the credibility of the virtual complainant; and the recent complaint falls within the exception to the hearsay rule set out in section 53 of the Evidence Act. The evidence of recent complaint in sexual assault cases is therefore admissible under the Evidence Act as evidence of sexual intercourse and lack of consent to that intercourse.

• 3. The victim's mother ought not to have been allowed to prove the terms of the complaint in the manner that she did since those terms were not adduced from the complainant; and the trial judge erred when he gave directions to the jury which were inadequate and misleading by telling the jury that they may deal with the complaint how they will, giving directions as to the probative value of the complaint based on the common law, and did not explain to the jury how to use the hearsay evidence of recent complaint in accordance with the Evidence Act.

• 4. In a case involving an offence of a sexual nature, the judge has discretion whether or not to give a corroboration warning under section 135 of the Evidence Act in certain cases, depending on the circumstances of the case. Whether a corroboration warning is given or not, this does not absolve the judge from complying with section 136(2) of the Evidence Act which pertains to specific directions in relation to certain categories of evidence including the victim's evidence in sexual offence cases and evidence of recent complaint. The trial judge complies with section 136(2) where he either gives the warning as that provision requires, or he has good reasons for not giving the jury the warning; and as the judge's discretion must be exercised judiciously it may be a prudent practice for the judge where he has good reasons for not giving the jury the warning, to at least explain in open court to counsel for the appellant and prosecuting counsel in the absence of the jury prior to the summation, why he will not give the warning.

  Gerald Joseph Crim. App. No. 2 of 2006 (Saint Lucia) and Kyon Frederick v The Queen Crim. App. No. 8 of 2006 (Saint Lucia) followed.

• 5. The trial judge erred in principle when he admitted the deposition of Dr. Gillard as evidence at the trial in the absence of adequate proof that Dr. Gillard was not in Saint Lucia, or could not be found after diligent search.

• 6. The omission of the trial judge to give any directions or proper directions on the approach that the jury should take when dealing with the expert evidence of Dr Gillard, having not had the benefit of hearing her give evidence and seeing her cross examined resulted in the jury not being aware that they were not bound by the opinion of Dr. Gillard as to how the victim may have received the shear injury to her buttocks. The trial judge should have directed that it was left to the jury to decide whether to accept or reject Dr. Gillard's evidence.

  Scott and Walters v R (1989) 37 WIR 330 at page 340 followed.

• 7. Although at common law prior to Morgan v DPP the issue of mens rea in rape cases revolved only around the defendant's intention to commit the act of intercourse, and to commit that act in the absence of consent, in light of sections 5 (b) and (c) of the 1992 Criminal Code, there is no need to import or assume the Common laws' concept of mens rea for the offence of rape under the 1992 Criminal Code of Saint Lucia. The Code itself has established its own regime and has endorsed a "knowledge" mens rea relating to the victim's non consent, expressly supported by some of the provisions under Title 7 of the Code and in particular sections 16 and 17; while providing to a defendant under Title 8 of the Code in certain circumstances the defence of ignorance or mistake of fact to a charge of rape.

• 8. That the directions of the trial judge were based on the common law prior to Morgan and did not mirror the law governing rape under the 1992 Criminal Code. Under this Code where the offence is rape and the defence is consent, the prosecution must prove that the VC did not consent or that the consent was invalid; that the defendant knew that the consent was invalid and that by exercise of reasonable diligence the defendant could have known of such invalidity.

  Morgan v DPP [1975] 2 All E.R. 347 [1975] 2 All E.R. 347 A.C. 182 , at 205 distinguished and not followed.

• 9. Having regard to the date of the alleged offence, the quality of the Prosecution's evidence and the time already spent in custody by the appellant, it is not in the public interest to order a re-trial.

  Sheffield Bowen v The Queen Crim. Ap...