Gregory Burton Appellant v The Queen Respondent [ECSC]
| Jurisdiction | St Lucia |
| Judge | GEORGES, J.A. [AG.],Justice of Appeal [Ag.],Chief Justice,Ephraim Georges,Sir Dennis Byron,Albert Redhead,Justice of Appeal |
| Judgment Date | 12 January 2004 |
| Judgment citation (vLex) | [2004] ECSC J0112-2 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | CRIMINAL APPEAL NO.1 OF 2002 |
| Date | 12 January 2004 |
IN THE COURT OF APPEAL
The Hon. Sir Dennis Byron Chief Justice
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
CRIMINAL APPEAL NO.1 OF 2002
Mr. Marcus Peter Foster and Mr. Andie George for the Appellant
Ms. Victoria Charles, Director of Public Prosecutions [Ag.] with Mr. Leslie Mondesir for the Respondent
On the 11 th March 2002 the Appellant, Gregory Burton was convicted by a majority verdict of rape of a 16-year-old female at Morne Fortune Castries on Friday 16 th June 2000 and sentenced to fifteen years imprisonment with hard labour. He now appeals both conviction and sentence.
Initially three grounds of appeal were lodged on 13 th March 2002, namely:
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[i] That the Learned Trial Judge erred in failing to adequately (sic) or at all refer the law to the facts.
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[ii] That the decision is against the weight of the evidence.
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[iii] That the Accused is not guilty of the offence.
On the morning of the hearing of the appeal [i.e. 24 th October 2002], notice of ten additional grounds were filed and the hearing of the appeal was, at the request of Appellant counsel adjourned to 29 th October 2002.
In a nutshell, the facts of the case as outlined by six prosecution witnesses are that at about 3 o'clock on the afternoon in question, the Appellant, who at the time was a Mathematics and Sports teacher at the Rockhall Senior Primary School, offered the complainant Crystal Felix who was then a 16 year old student at the school a ride in his car.
Instead of stopping where she had requested, the Appellant accelerated and locked all the doors of the car by means of a central locking device and drove to a remote area on the Morne where he stopped and fixed a sunscreen on the front windscreen of the car and proceeded to rape her at gunpoint and threatened to blow her head off if she told anybody.
The complainant testified that she had entered the left side of the back seat of the car and the Appellant spoke to her while he drove up Rock Hall. Then the car glass, which was tinted, went up and the doors were locked. The Appellant [Mr. Burton] then said to her that she had too much style in school and did not talk to fellas [sic] and that he was taking her maid [hymen] and nobody could stop him. He then began driving fast and she asked to be put down past the school but he continued driving faster. She started to punch the door of the car, she said, and was screaming.
The Appellant drove straight up Rock Hall hill and eventually parked the car and tacked on the sunscreen to the front windshield of the car. There was loud music in the car throughout she added. The Appellant then removed something from one of the pockets of the car and placed it on the car seat next to him and came out of the car, opened the right rear door and entered the car where he grabbed her shirt. She pulled herself away from him, she said, whereupon he grabbed her by her jeans and a button flew off and her trousers unzipped.
A struggle ensued during which she related how she was slapped in her face and punched on her feet and legs about six times. The Appellant finally pulled off her trousers, she declared, tore her black lace panty, placed a gun to her head, threatened her and raped her. He then kicked her out of the car, threw her clothes at her and drove off.
She afterwards walked to the home of her friend Brendaly Nicholas and told her that the Appellant had raped her. Nicholas gave evidence of the recent complaint, which was consistent with the complainant's testimony. The complainant's mother, Luciana St. Ange, testified that the following day 17 th June 2000, she had noticed the complainant looking pale and walking with a limp and that her cheeks were swollen. On Tuesday 20 th June 2000, after being summoned to her daughter's school, she accompanied the complainant to the Criminal Investigation Department following which she (the complainant) was examined by Dr Herbert Marius who discovered that the complainant was no longer a virgin. Her hymen had been recently ruptured, he said, by sexual intercourse with penetration by an erect penis. He further disclosed in re-examination that his findings were consistent with both consensual and non-consensual intercourse.
Sgt. Sebastiana Charles who investigated the case formally arrested and charged the Appellant for the offence of rape. A silver and green sunscreen was recovered and a pair of jean pants with a missing button and a torn panty were put in evidence.
The Appellant denied the charge and raised an alibi by way of defence at the trial. He testified that on the alleged date and at the time of commission of the alleged offence, he was in Castries at the Key Shop on High Street whence he went to the Bank of Nova Scotia and returned to the Key Shop. He called two witnesses in support of his alibi
Notably when first told of the complainant's allegations by Sgt. Charles, the Appellant said that he could not understand what she was talking about and he knew nothing about that. He also testified that he said nothing during a confrontation in which the complainant had gone through all the details of the sexual encounter. The issue of an alibi was never disclosed until the trial a year and a half later and the two witnesses admitted that they had been contacted by the Appellant at most three weeks prior to the trial. That therefore is the crux of the case. It is essentially the complainant's word against that of the Appellant.
For convenience, I shall first deal with the three original grounds of appeal, which are set out at paragraph 2. Perusal of the Judge's summation shows that at the outset, he gave general directions to the jury on the respective functions of the Judge and the jury in a criminal trial, the burden and standard of proof and the need for fairness and impartiality. He then went on to give specific directions [at pages 70 to 72] by defining the offences with which the Appellant was charged, the ingredients of each offence and explained special features such as the law relating to consent, recent complaints and corroboration which had to be taken into account in sexual cases. Throughout all of this, the learned trial Judge illustrated his directions to the jury by reference to the facts of the case as borne out by the evidence given by the witnesses. This is amply borne out throughout the detailed summation and, in particular, at pages 70 to 75 of the record. There is therefore, in my view, no merit in ground 1 of the appeal.
As regards ground 2, which alleges that the decision is against the weight of the evidence, perusal of the record is replete with evidence on which a jury, properly directed, could safely convict. It was a thoroughly bad case. As stated earlier, this was a case that was ideally fit for a jury, and largely hinged on the evidence of the complainant and that of the Appellant.
At page 86 of his summation, the learned trial Judge told the jury that:
"Basically the prosecution's case is that you should believe Crystal's account, a very graphic account, a very detailed account of what took place between her and her teacher. This is a person whom she knows very well, a person who teaches her, whom the Accused himself said that she could'nt mistake for somebody else at 3 o'clock in the afternoon. That account is consistent with the evidence of Brendaly Nicholas who saw Crystal in a very distressed condition the Friday afternoon. The evidence of Dr Marius also confirms that Crystal had sexual intercourse at a time which included the time when Crystal said this incident occurred. The evidence of Sgt Charles as to what the Accused said at the confrontation. The evidence as to Sgt. Charles again who gave the evidence as to what his reaction was when he was accused of committing this crime".
The defence of the Appellant was a complete denial and an alibi which he gave in evidence on oath and which the Judge put to the jury who would have been in a good position to assess its credibility. They evidently rejected it and accepted the complainant's testimony, which was cogent and consistent with the rest of the evidence. Ground 2 of the appeal is accordingly dismissed. Ground 3 in my view does not constitute a ground of appeal and is disregarded.
I now turn to Ground 4 of the appeal namely:
"That the learned Judge erred in that the evidence of Dr Marius with regard to refreshing his memory of notes he made should not have been allowed:-
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[a] as it was not established that he had made these notes contemporaneously with his examination; and
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[b] he had declared or expressed no defect of memory to warrant him reading these notes in Court at trial."
Mr. Marcus Foster, learned counsel for the Appellant referred to paragraph 74 page 1040 of the 1997 Edition of Archbold. He urged that there was no evidence that the doctor's notes had been made contemporaneously with his examination or that he suffered any imperfection of memory to warrant reading from his notes at the trial. The learned DPP on the other hand submitted that the trial Judge had properly admitted Dr Marius' evidence. No objection had been taken at trial to the doctor refreshing his memory from his notes nor was the issue of contemporaniety raised in cross-examination. From page 14 of the record of appeal, the obvious inference from the doctor's evidence is that the notes of his findings on examination of the complainant were made contemporaneously with the examination and permission was sought and granted to refresh his memory therefrom without objection. That ground of appeal therefore fails.
Ground 5 of the appeal states:
"That the learned Judge erroneously admitted the evidence of the...
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