Gordon v R

• Jurisdiction: Saint Kitts and Nevis
• Judge: Singh J.A.
• Judgment Date: 13 May 1996
• Neutral Citation: KN 1996 CA 3
• Docket Number: Criminal Appeal No. 8 of 1995
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 13 May 1996

Court of Appeal

Floissac, C.J.

Byron, J.A.

Singh, J.A.

Criminal Appeal No. 8 of 1995

Gordon

and

R

Dr. Henry Browne, Miss Karen Hughes with him, for the appellant

Mrs. Joan Joyner, Director of Public of Public Prosecutions, for the respondent

Criminal practice and procedure - Appeal against conviction

facts

Appellant convicted of rape and indecent assault contrary to ss. 46 and 47(1) respectively of the Offences Against the Person Act Chapter 41 of the Revised edition 1961 of the Laws of St. Christopher and Nevis — Appellant challenged the validity of his convictions on grounds of misdirection by the trial judge and imbalance in her summing up to the jury and contended that the sentences imposed on him were unduly severe — It was incumbent on the trial judge to deal with the issues of consent and corroboration both as a matter of law and as a matter of fact, separately in relation to each count and to so direct the jury — The trial judge failed to so do — Misdirection by the trial judge — Imbalance in summing up

Held: A judge in adversarial proceedings must always remain impartial and must at all times maintain a proper balance between the two sides — Judge's comments exceeded the permissible limits of judicial comment and the summing up was fundamentally unbalanced — Proviso to s. 39(1) of the West Indies Associated States Supreme Court (Saint Christopher, Nevis and Anguilla Act) 1975 — It is not certain that had the jury been properly directed the same verdict would have been returned — Doubted whether there was a miscarriage of justice — Proviso could not be applied — Appeal allowed — Convictions quashed and sentences set aside.

1 SATROHAN Singh J.A.

2 On October 12, 1995, the appellant Gilbert Gordon was convicted by a Jury before Velma Hylton J of the offences of Rape and Indecent Assault, contrary to Ss 46 and 47(1) respectively of the Offences Against the Person Act Chapter 41 of the Revised Edition 1961 of the Laws of St. Christopher and Nevis. He was ordered to serve consecutive sentences of five years and two years imprisonment with hard labour respectively. He has appealed to this Court and in his appeal he challenges the validity of his convictions on grounds of misdirections by the trial Judge and imbalance in her summing up to the Jury. The appellant also contends that the sentences imposed on him were unduly severe.

3 The evidence in this matter disclosed that the complainant and the appellant had a love relationship and lived together for some three or four years. They then fell out and the complainant had a new boyfriend Denis Merchant. According to the evidence of the complainant, on August 25, 1994, when this new relationship was some four months old, the complainant, mistaking a car she saw by the cenotaph on the Bay Road in St. Kitts to be the car of Denis Merchant, went towards the car. As she approached it she realised her mistake and observed it was the appellant in the car. The appellant pointed a gun at her and told her to jump in the car or he will shoot her. Her daughter was also going towards the car. The complainant told her to “go back” and told her friend Sylvia she will be back in ten minutes. She went in the car. The appellant took her to Boyds Village where he transferred her into his jeep. He then drove her to West Farm. There he accused her of ruining his life and he beat her. He then had sexual intercourse with her. At his request, she performed the act of sex whilst on top of him, she then came off and had oral sex with him. He discharged in her mouth and commanded her to swallow it (the alleged Indecent Assault).

4 The case as advanced by the prosecution showed (1) an abduction at gun point of the complainant by the appellant (2) a beating of the complainant by the appellant because she “had a next boyfriend in her life” as a result of which she received several injuries (3) Rape and Indecent Assault out of fear of the gun but not as a result of the beating.

5 The defence of the appellant was that he never owned a gun and that on that day he had no gun. His evidence was that the complainant joined him in the car as a result of a prearranged plan to meet by the cenotaph. He took the complainant to his home at West Farm. He told her he had to do something for his mother. She disbelieved him and accused him of wanting to go with another woman. She attacked him with a cane, there was a struggle and he used the cane on her. He then tended to her injuries received during the struggle. He then fell asleep. He woke up next morning and the complainant told him “two days now she ain't get nutten” and with her consent they had sex. By this defence, the appellant was admitting consensual sexual intercourse with the complainant and denying the charge of rape. His evidence, like that of the complainant, also suggests that the beating received by the complainant had no relevance to her alleged submission to the sexual act. I now propose to deal with the issues raised in this appeal.

THE MISDIRECTIONS

6 Rape is the unlawful sexual intercourse by a man with a woman without her consent by force, fear or fraud. From the complainant's own admission in her evidence, the alleged rape was committed not by force (the beating) but by fear (the presence of the gun). However, in dealing with the factual aspect of the issues of corroboration and consent, and generally in her summing up to the jury, the Judge presented the case for the prosecution as if the complainant's submission to the sexual act was as a result of the force of the beating and not out of fear of the gun. She quite properly directed the jury that the appellant's admission of intercourse was only corroboration of the complainant's testimony that he had sexual intercourse with her and that there was no corroboration of the complainant's evidence of lack of consent. However, immediately after this direction, the judge interposed the evidence of the injuries sustained by the complainant from the beating and told the jury in reference thereto:

“Now, when you consider the evidence of Dr. Laws and I shall remind you of it later it might appear to you that if someone were consenting to sexual intercourse that the male partner or the person would not have to beat them up like that” ….

“You will remember what Dr. Laws said could have caused them. I will remind you of it and you will have to determine if regardless of what had happened if he beat her with an electric cord, with a belt and with a cane, was that sexual intercourse an act of consent between consenting adults.”

7 Imprudently juxtaposed as these directions were to the direction by the Judge that there was no corroboration of the complainant's evidence of lack of consent, in my view rendered the latter direction valueless. The Judge dealt with the matter in a manner to suggest to the jury that the evidence of Dr. Laws on the injuries received by the complainant could effectively substitute for the absence of corroboration with respect to lack of consent. The Judge in these directions seemed to have been distinctly indicating to the jury that if the complainant had consented to have sex with the appellant there would have been no need for him to beat her. Indeed, just about the end of her summation, the judge told the jury:

“I told you there is no corroboration that there was no consent but I told you in that regard you have to consider all the circumstances in particular the evidence of the Doctor as to the condition of the virtual complainant's body. Bear in mind however what the Accused said about how the virtual complainant suffered injuries.”

8 This was a totally erroneous interpretation of the evidence and by its clear and suggestive implication constituted a material misdirection at the trial. At no stage during the summing up did the trial Judge refer the jury to the evidence of the complainant that she was beaten because she had “a next boyfriend in her life”.

9 The appellant was on trial for the offences of Rape and Indecent Assault. The Rape was the vaginal sexual assault and the Indecent Assault was the oral sexual assault. In directing the jury as to how they should deliberate on the legal aspect of these two offences the trial Judge told the jury:–

“I tell you as a matter of law however that according to how I see the case both counts stand or fall together.”

10 The result of this direction and her directions generally, was that the verdicts to be returned by the jury, were limited to guilty or not guilty on both counts. The jury was not given the option of returning a guilty verdict on one count and not guilty verdict on the other. I consider this another serious misdirection of the trial Judge. The Prosecution presented the indictment with these two offences as separate and distinct charges. It was therefore incumbent on the trial Judge to deal with the issues of consent and corroboration both as a matter of law and as a matter of fact, separately in relation to each count and to so direct the jury. Unlike the Indecent Assault, which was not admitted by the appellant, sexual intercourse having been admitted by the appellant, it was open to the jury apart from saying guilty or not guilty to both counts, to say guilty of Rape but not guilty of Indecent Assault if they so found. Failure to so direct the jury and to tell them that the verdicts for each count need not be the same having regard to what facts they may have accepted, was a material irregularity at the trial and a misdirection. I now proceed to the issue of imbalance in the summing up.

IMBALANCE

11 During her summing up of the case to the jury, Hylton J told the jury “I do not as you have heard me say bat on anybody's side and consequently I cannot overstress it”. Approaching the end of her summation, she said “I am on neither side. Remember I said I do not bat on the side of the Prosecution nor on the side of...