Winston Joseph Appellant v The Queen [ECSC]

• Jurisdiction: St Lucia
• Judge: BYRON, C.J.:,BYRON, C.J.,Dennis Byron,Chief Justice,Albert Redhead,Justice of Appeal,Joseph Archibald
• Judgment Date: 31 October 2001
• Judgment citation (vLex): [2001] ECSC J1031-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: CRIMINAL APPEAL NO. 4 OF 2000
• Date: 31 October 2001

[2001] ECSC J1031-1

IN THE COURT OF APPEAL

Before:

The Hon. Sir C.M. Dennis Byron Chief Justice

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Joseph Archibald Justice of Appeal [Ag]

CRIMINAL APPEAL NO. 4 OF 2000

CRIMINAL APPEAL NO. 8 OF 2000

CRIMINAL APPEAL NO. 7 OF 2000

Between:

Winston Joseph

Appellant

and

The Queen

and

Between:

Benedict Charles

Appellant

and

The Queen

Respondent

and

Between:

Glenroy Sean Victor

Appellant

and

The Queen

Respondent

Respondent

1 BYRON, C.J.: During the appeal sitting in St. Lucia we had three cases where the sentences showed substantial inconsistency with each other. In the case of Winston Joseph the appellant had been convicted for unlawful carnal knowledge of a girl of 12 years old and sentenced to 8 years imprisonment. In the case of Benedict Charles the appellant was convicted of incest against his 14 year old daughter and sentenced to 15 years imprisonment. In the case of Glenroy Victor he was convicted of rape against an adult and sentenced to 30 years imprisonment. The appellants Joseph and Charles had contested their cases and the appellant Victor had pleaded guilty. We decided, with the consent of the appellants, to hear the arguments and adjudicate on the three appeals against sentence together. The appeals against convictions are fairly easily disposed of and we will first give our reasons for dismissing them, address the issue of the statutory punishments for the crimes involved and guidelines aimed at developing consistency in the sentencing practices for these offences. In dealing with this objective, however, it should be noted that up to now there is considerable divergence in the punishments available in the statutes from member state to member state.

BYRON, C.J.

Appeal Against the Conviction of Winston Joseph:

2 The jury had returned a verdict of guilty for unlawful carnal knowledge against a female under the age of 13, being aged 12, on 16^th February 1994. He was sentenced to 8 years imprisonment by Hariprashad-Charles, J. The evidence of the complainant was that on 16^th February 1994 about 6:45 p.m. she went to use a pit latrine at home when the appellant a well-known neighbour came into the latrine and had sexual intercourse with her. Her elder sister gave evidence that she saw the incident and struck the appellant with a kettle, flogged the complainant and took her to the police station where a complaint was made. The appeal against conviction was limited to challenges to the committal process which counsel contended constituted a material irregularity which made the conviction unsafe.

3 The chronology of events in this long drawn out matter is that after the complainant had reported the matter to the police on 16^th February 1994, the appellant was arrested on 10^th August 1994 and on 23^rd November 1994 a Preliminary Enquiry was convened. On 18^th April 1995, the charges were dismissed and the appellant was discharged. It appears that the decision of the Magistrate was based purely on the omission of the Prosecution to lead evidence of the age of the complainant. On 9^th May 1995, the Director of Public Prosecutions issued a notice to the Magistrate with directions for a Preliminary Enquiry to be held to allow a birth certificate to be tendered in evidence. On 27^th March 1996 the birth certificate was tendered in evidence and on 28^th March the appellant was committed to trial for this offence. It was not until 4^th April 1999 that an indictment was issued. The appellant had been out of custody since he was discharged in 1995. On 4^th November 1999 a summons was issued for his appearance before the Assizes on 15^th November. On that day he appeared pleaded not guilty and his matter was adjourned. He remained on bail until the hearing. At neither the hearing nor the appeal was any substantive argument raised on the issue of the delay in bringing this matter on for trial but we are concerned about it.

4 The legal submissions raised were to the effect that the Director of Public Prosecutions had exceeded his powers in the directions he gave the Magistrate because they were limited to ordering a new Preliminary Enquiry under the provisions of Section 780 of the Criminal Code of St. Lucia, and what had transpired was not a new Preliminary Inquiry. However, the authority of the Director to pursue the course that was in fact taken is clearly set out in section 785. I therefore overrule the submission and dismiss the appeal against conviction. I need do no more than set out the provisions of section 785 ( 1) and (2):

• "(1) In any case where the magistrate discharges an accused person, the Director of Public Prosecutions may require the magistrate to send to him the depositions taken in the case or a copy thereof, and any other documents or things connected with the case, which he may think fit.

• (2) If, after the receipt of such documents and things, the Director of Public Prosecutions is of opinion that the accused person should have been committed for trial, the Director of Public Prosecutions may, if he thinks fit, refer back such documents and things to the magistrate, with directions to deal with the case accordingly, and with such other directions as he may think proper."

Appeal Against the Conviction of Benedict Charles

5 The jury had returned a verdict of guilty of incest on 3^rd November 2000 and Charles, J imposed a sentence of 15 years. The appellant appealed against the conviction on the grounds that there was no corroboration, the appropriate legal warnings were not given, and that the verdict was not supported by the evidence.

6 The evidence disclosed that the appellant was the father of the complainant and her three brothers. Her mother left them when she was four years old and they lived and grew up with their father. The complainant was born on 17^th July 1984. About 1997 she went to live with her aunt as her father worked as a security guard at night. She visited her father often. Her evidence was that in July 1998 she asked him for money to buy shoes. Although he agreed to give the money he did not keep his promises and she asked several times. On 21^st August 1998 she went to her father's home and entered his bedroom where he was lying on his bed. He held her and had sexual intercourse with her. He did not give her the money for the shoes. In her testimony she alleged that on previous occasions he used to finger her. He denied the allegation. In January 1999 she told her mother about the incident. A report was made to the police and criminal proceedings were initiated. The appellant denied that he had sexual intercourse with the complainant and suggested that the complaint was maliciously made because of dissatisfaction over the money for the shoes.

7 The only evidence that the appellant had sexual intercourse with the complainant was given by the complainant. There was no corroboration of her testimony. The learned trial judge explained to the jury that there was no corroboration, and that it was dangerous to convict on the uncorroborated evidence of the complainant. Full explanations were given of the reasons for the warning, and the reasons included both the reasons of the ease with which a female could make false allegations of sexual intercourse and the difficulty of rebuttal, and the added circumstance of the youth of the complainant. After warning the jury that it was dangerous to convict, the judge said that if they were convinced that the complainant was telling the truth it was open to them to return a verdict of guilty. We did not find any fault with the directions which were expressed in a manner very favourable to the appellant.

8 The prosecution called five witnesses. The appellant made an unsworn statement from the dock in which he denied having sexual intercourse with the complainant. The complainant gave clear and detailed evidence which supported the conviction. On the facts there was a direct conflict of testimony between the complainant and the appellant, and the jury believed the complainant. We did not think that the verdict was unsafe.

Appeal Against the Conviction of Glenroy Sean Victor

9 The appellant pleaded guilty to...