Gilroy Auguste v The King

• Jurisdiction: St Lucia
• Judge: ‘Henry JA’
• Judgment Date: 09 July 2025
• Judgment citation (vLex): [2025] ECSC J0709-1
• Year: 2025
• Court: Court of Appeal (Saint Lucia)
• Docket Number: SLUHCRAP2020/0004

Between:

Gilroy Auguste

Appellant

and

The King

Respondent

[2025] ECSC J0709-1

Before:

The Hon. Mr. Mario Michel Chief Justice [(Ag]

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mde. Esco Henry Justice of Appeal

SLUHCRAP2020/0004

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Criminal appeal — Sexual intercourse with a minor — Procedural irregularities — Fair trial guarantee — Mis-directions and/or non-directions by the trial judge — Whether the conviction is unsafe and unsatisfactory and should be overturned — Whether the sentence is manifestly excessive or did not reflect time spent on remand

The factual matrix giving rise to this appeal is not complex. The case for the Crown is that on Monday 2 ^nd January 2012, the virtual complainant (“VC”) who was twelve years old at the time, left her home at La Resource, Dennery to attend a function at Assou Square at the La Resource playing field. There she met the appellant, entered his vehicle and accompanied him to the Bordelais area ostensibly to collect another individual. When they arrived at the Bordelais area the appellant brandished a knife and told the VC to remove her clothing. Before she could do so, another person approached them whereupon the appellant drove off and took the VC to a house.

At the house, the appellant had the VC sit on a sofa and had sexual intercourse with her. He drove her to her home in the wee hours of the morning. Later that morning, the VC's parents confronted the appellant at a social gathering. The police were contacted and a report made to them. During a medical examination of the VC, it was discovered that her hymen was missing. She later identified the appellant as the person who had sex with her.

Further investigations were carried out, resulting in the appellant being arrested, charged with and indicted for the offences of sexual intercourse with a minor contrary to section 127(1) of the Criminal Code of Saint Lucia (‘ Criminal Code’) and indecent assault contrary to section 130(1) of the Criminal Code.

The trial was scheduled to commence on 17 ^th June 2019. However, when the case was called the appellant was absent. The learned judge conducted a hearing and received sworn testimony from the court orderly who testified that there was no response when the appellant's name was called three times at 9.45am that day. Consequently, the learned judge ordered that a bench warrant be issued for the appellant's arrest. He then commenced the empanelment of a jury in the appellant's absence. The appellant arrived at court during the course of jury selection, and he participated in the remainder of the proceedings. After the jury's empanelment the jury members were released for the rest of the day.

The learned judge then conducted an inquiry into the appellant's tardy arrival at court. The judge heard testimony from the security officer and from the appellant. The appellant explained that he was at a bus stop nearby and did not hear when his name was called. The learned judge determined that the appellant had lied to him, ruled that he thereby committed contempt of the court, revoked his bail and sentenced him to prison for the rest of the trial.

When the trial resumed the next day, the appellant made an application for bail which was denied. His bail was restored on 23 ^rd June 2019. Among the Crown's witnesses were the VC (who was by then 20 years of age), her mother and her father. On 25 ^th June 2019, the jury returned a unanimous verdict of guilty for sexual intercourse with a minor. No verdict was recorded on the count charging indecent assault.

Sentencing of the appellant was done on 19 ^th December 2019, by a different judge. The sentence was expressly stated to commence from the date of conviction. The appellant was ordered to enroll in any sexual therapy and educational program available at the prison.

Being dissatisfied with the outcome of the trial, the appellant filed his notice of appeal. In his grounds of appeal, he contended that the conviction was rendered unsafe and unsatisfactory in several respects and that the entire trial was contaminated by numerous procedural irregularities. Additionally, it was submitted that the learned judge's summation to the jury was deficient in that it contained mis-directions and non-directions including the absence of a corroboration warning as required by the common law.

Regarding the appeal against sentence, the appellant contended that the sentence was manifestly excessive, and further, he should have been but was not credited for the period he spent on remand. It was submitted that this time should have been taken into account and deducted from his sentence. The respondent countered that the verdict is safe and there had been no miscarriage of justice. The sentence was defended as being just and reasonable.

Held: dismissing the appeal against conviction, upholding the conviction for the offence of sexual intercourse with a minor, allowing the appeal against sentence and substituting a sentence of ten years, six months and seven days, that:

• 1. Original jurisdiction to entertain claims alleging any past, present or anticipated breach of the constitutional fundamental rights provisions is vested in the High Court by section 16(2) of the Constitution. It is now accepted that properly interpreted, the provision reserves questions about breach of constitutional fundamental rights provisions, including a right to a fair trial, for determination by the High Court and that the Court of Appeal does not as a rule have original jurisdiction to consider those issues. Notwithstanding, the Court of Appeal may entertain and determine such questions a) where they arise in an appeal from a final decision of the High Court touching and concerning those issues; and b) if they arise in extant proceedings at the Court of Appeal. None of the constitutional issues that the appellant sought to argue in this appeal were raised during the trial. Thus, this Court did not consider the appellant's contention that he was denied a fair trial by an independent and impartial tribunal by reason of the alleged breaches of his constitutional right to due process.

  Constitution of Saint Lucia Cap. 1.01 of the Revised Laws of Saint Lucia applied; Hunte and Khan v The State[2015] UKPC 33 considered, Levi Maximea v The Chief of Police and others DOMHCVAP2020/0009 (delivered on 7th December 2023, unreported) considered.

• 2. It is settled law that not every departure from procedural norms or errors of law or fact will invalidate a decision arrived at in legal proceedings. The proviso to section 35 (1) of the Eastern Caribbean Supreme Court (Saint Lucia) Act (‘Supreme Court Act’) provides that this Court may, if it thinks that a point raised on appeal might be decided in the appellant's favour, dismiss the appeal in an appropriate case if it considers that no miscarriage of justice has actually occurred. Applying the proviso to this case with respect to the contempt proceedings, while there were some procedural missteps by the learned judge in conducting the contempt proceedings it cannot be argued that a miscarriage of justice occurred that would undermine the overall criminal trial. Further, it cannot be said that the learned judge's determination that the appellant was guilty of contempt of court was contrary to the evidence or the law and was therefore unjustified.

  The proviso to section 35 (1) of the Eastern Caribbean Supreme Court (Saint Lucia) Act Cap. 2.01 of the Laws of Saint Lucia applied.

• 3. A trial judge may be required by law to issue a corroboration warning to a jury in certain situations. In such a case, the judge is expected to warn the jury that it is dangerous to act on the uncorroborated evidence of a virtual complainant to convict an accused or words to such effect. Formerly, at common law such a warning was mandatory in trials for rape or other sexual offences. The requirement for a corroboration warning in sexual offence cases in Saint Lucia has been abolished by section 135 of the Evidence Act. Therefore, the learned judge had no obligation to include such a warning in his summation to the jury. He issued no corroboration warning in this case and cannot be faulted for not doing so.

  Section 135 of the Evidence Act, Cap. 4.15 of the Revised Laws of Saint Lucia applied.

• 4. By section 136 of the Evidence Act, an ‘unreliability warning’ has been introduced and is deployed at the trial judge's discretion depending on the circumstances of the case. In the case at the appeal bar, the learned judge highlighted for the jury that in relation to the VC's evidence, they had to decide whether she was reliable in light of the offence charged. He explained that due to her age at the time of the alleged offence, the absence of an independent witness account regarding the alleged sexual assault by the appellant, and the inconclusive medical evidence concerning whether she was sexually assaulted, it was necessary to exercise special care in evaluating her testimony and determining the weight to be given to it. It can be said therefore that the learned judge captured the essentials of the ‘reliability caution’ specified in section 136 of the Evidence Act as to the care to be taken in evaluating the VC's testimony as a whole and particularly in relation to her allegations of sexual assault by the appellant.

  Section 136 of the Evidence Act, Cap. 4.15 of the Revised Laws of Saint Lucia applied; Gael Dariah v R SLUHCRAP2017/0012 (delivered 10th March 2021, unreported) followed; Darlington Noel and Jan Isidore v R SLUHCRAP2016/0008 and SLUHCRAP2016/0007 (delivered 6th December 2022, unreported) followed.

• 5. It is an accepted principle of law that a trial judge is duty bound to ensure that a defendant has a fair trial whether or not he is represented by counsel. Where a defendant is unrepresented, the trial judge in seeking to...