Frederick v The Queen
| Jurisdiction | St Lucia |
| Judge | Joseph-Olivetti, J.A. |
| Judgment Date | 25 March 2009 |
| Neutral Citation | LC 2009 CA 1 |
| Docket Number | Criminal Appeal No. 8 of 2006 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 25 March 2009 |
Court of Appeal
Rawlins, C.J.; Edwards, J.A.; Joseph-Olivetti, J.A. (Ag.)
Criminal Appeal No. 8 of 2006
Alfred Alcide for the appellant.
Ms. Victoria Charles-Clarke, Director of Public Prosecutions and Ms. Janine Samuel-Kisner for the Crown.
Criminal practice and procedure - Carnal knowledge — Appeal against conviction — Judge has discretion not to give corroboration warning but must give reasons — Failure to do so renders verdict unsafe — Comments on right to silence may have shifted burden of proof in jury's mind — Conviction quashed — No new trial ordered.
Facts: The appellant was convicted of unlawful carnal knowledge on 30th June 2006, and sentenced to 5 years imprisonment. He appealed against his conviction on the ground that it was unsafe and unsatisfactory having regard to the failure of the trial judge to give an adequate direction on truthfulness of a witness and corroboration of the virtual complainant's evidence. The appellant contended further, that the trial judge should have had regard to the weight of the evidence and should have given a proper direction on the burden and standard of proof. The prosecution's case was that on the 25th August 2004, the appellant and co-accused forced the virtual complainant into a car and took her to a lonely field, held her against a tree and both raped her. The appellant denied raping the virtual complainant, indicating that he never had sex with the virtual complainant.
Held: allowing the appeal, quashing the conviction.
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1. In a case involving an offence of a sexual nature, the judge has a discretion whether or not to give a corroboration warning and specific directions in relation to the victim's evidence in accordance with section 136 of the Evidence Act, 2002. The judge was however obliged to articulate reasons if he determined that the corroboration warning and specific directions were not necessary. Therefore his failure so to do, coupled with an absence of reasons renders the verdict unsafe and unsatisfactory.
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2. The admission of improper identification evidence, the omission to give a direction on expert witnesses, and suggestions by the Prosecution in cross-examination that threats were made to the defence witnesses in the absence of the Prosecution adducing any evidence to establish that those threats were made, render the trial unfair and the resulting verdict unsafe and unsatisfactory.
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3. The duty to give the jury a corroboration warning under section 15(4) of the Evidence Act, only arises where a child of 12 and over has been examined as to his or her competence and is allowed to give evidence. The judge did not admit the victim's evidence under section 15(2) of the Evidence Act, and therefore there was no need for a corroboration warning under section 15(4) of the Act.
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4. The comments made by the judge in his direction on the accused's right to silence might have nullified this right and may have had the effect of shifting the burden of proof from the Prosecution to the appellant in the jury's mind.
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5. 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.
Joseph-Olivetti, J.A. [AG.]: A young girl alleged that on the night of 25th August 2004, whilst walking on the streets of Faux-A-Chaux, Saint Lucia, she was forced into a car by two men, taken to a lonely site and raped. The appellant, Mr. Kyon Frederick and his co-accused, Mr. Terrel James, were charged with the offence of having unlawful carnal knowledge of a female aged 14 contrary to section 216 (1) of the Criminal Code of St. Lucia 1992, and with indecent assault contrary to section 112 (1)(b). They were both convicted before Redhead J, [Ag.] and a jury on 30th June 2006. Mr. Frederick was sentenced to 5 years imprisonment. His co-accused was given a like term of imprisonment, but I am not directly concerned with him here. Mr. Frederick initially appealed both against his conviction and sentence but at the start of the hearing he withdrew his appeal against sentence.
The appellant filed 2 grounds of appeal but was allowed to amend same at the hearing by adding further grounds as he had retained counsel at very short notice.
The grounds in essence as expressed by learned counsel, Mr. Alcide, are as follows:–
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(a) The verdict is unsafe and unsatisfactory
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(b) The verdict is against the weight of the evidence
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(c) Inadequate direction on truthfulness of witnesses
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(d) Trial was unfair in that the learned trial judge allowed the prosecution to ask leading questions and gave no assistance to the jury to deal with evidence so elicited.
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(e) Failure to give proper explanation and warning on corroboration as required by section 15 of the Evidence Act, No. 5 of 2002
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(f) Misdirection on the burden and standard of proof.
The Crown's case, as is the norm in cases of this nature, rested solely on the evidence of the victim. She was aged 14 at the time of the incident, and 17 at trial.
Her evidence was to the effect that she was walking home from a party on Wednesday, 25th August 2004, at about 10:30 p.m. Her friend Ian was walking some way behind her. When she arrived in the vicinity of her uncle's shop, close to her home, the appellant and his co-accused, both of whom she knew by sight (they lived in her neighbourhood), drove up in a car (“burning tires” as she put it). The appellant who was the driver came out, asked her to go with him; she refused. He then forced her into the car, drove her to a lonely field in Vigie, Castries, held her against a tree and they both raped her. The appellant took away with him her panties, saying that he always kept the underwear of girls he had had sex with. The appellant then drove her back to Castries. She walked home getting there around 4:00 a.m. Her grandmother let her in but she said nothing to her because she was afraid of her reaction. On 27th August 2004, she told the former girlfriend of the co-accused of her ordeal, then she called her young boy cousin, (15 years at the time) who accompanied her to the Police Station where she made a report. She was later examined by Dr. Marius.
The other witnesses for the Prosecution were the girl's grandmother, Dr. Marius and the two investigating police officers. Officer Nickson arrested the appellant on 9th September 2004, and she was assisted by WPC Alcindor, who confirmed that the appellant gave a written statement to the effect that he had nothing to say.
Dr. Marius' testimony was to the effect that the girl was not a virgin and that he had not seen any signs of trauma of her genital area or evidence of other injuries on her. The gist of the evidence of the victim's grandmother was to the effect that she was worried about the girl when she did not return home. Accordingly, she had slept fitfully and finally let her in at about 4:00 a.m. She did not question her. She said that the victim looked sad but on cross-examination, admitted reluctantly that in her statement to the Police, she had said that she had not seen the girl's face. She also said she did not hear the sound of burning tires that night.
It is noted that neither of the investigating officers searched the appellant's home for the girl's underwear. Indeed, Officer Nickson thought it was not appropriate to do so. Officer Nickson, in addition, testified that the victim identified the appellant when he was in Police custody as Kyon who had sex with her at Vigie (See Record of Appeal, Tab B p. 106 lines 4–11). Officer Nickson also gave similar evidence in relation to the co-accused.
The appellant was unrepresented at trial which had been adjourned from an earlier date. It appears that his lawyer was given leave to withdraw on the very day of the trial as the appellant had apparently failed to meet the conditions for representation (See Record of Appeal, Tab B p.5 lines 17–25; p.6 lines 1–14). The appellant, nonetheless, made brave attempts to cross-examine the witnesses. He also called three witnesses and testified himself. His co-accused was also unrepresented. He opted to remain silent and called the same three witnesses.
The gravamen of the appellant's defence was a denial — he had not abducted and raped the girl. He however, admitted that although he was not at the party that night, he, at one Randall's request, drove Randall whom he described as “the girl's man” to Vigie and left them there. He was accompanied by one Shawn. Later he returned with Shawn, picked up the girl and Randall and returned all three to Faux-A-Chaux. Randall lived with him at the time and came to him at his home which was in the vicinity to make his request. Notably, he was mercilessly taxed in cross-examination as to why if he had not raped the girl as alleged, he had never gone to the Police.
His three witnesses were Gregory Alcide, Shawn Joseph and Ian Joseph. He being the second named defendant was only allowed to examine them after he had given evidence and after they had testified on behalf of his co-accused.
Gregory Alcide's evidence supported the appellant's evidence that the appellant was not at his party that night and he had not seen him in the area. Mr. Alcide testified that he knew the victim, he had not invited her to his party and she was not there and that whilst sitting on a bridge outside his home he had seen the victim on the road with two guys, Ian and Shawn and she left in a car with them and somebody followed them on foot.
The gist of Shawn Joseph's entire testimony, (on behalf of both accused) was that he had accompanied the appellant in the appellant's car to drop off the victim and Randall at a beach in Vigie, and that they left the two there, returned later for them and dropped them off at Faux-A-Chaux.
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