MARLON JOHN
THE STATE
M.A. de la Bastide CJ.
L. Jones JA
A. Lucky JA
Ms. S. Chote for the State
22nd February, 2001.
Delivered by M.A. de la Bastide CJ.
On the 19th December 2000 we granted leave to appeal in this matter, treated the hearing of the application for leave as the hearing of the appeal, allowed the appeal, quashed the conviction and sentence and ordered a retrial. We stated then that we would give our reasons later and we do so now.
The appellant was convicted on the 16th October, 1998, at the Port of Spain Assizes on a two-count indictment charging him with rape and kidnapping. On the 20th October, 1998, he was sentenced to 18 years’ hard labour and 6 strokes with the birch for rape and 2 years’ hard labour for kidnapping, the sentences to run concurrently.
The case for the prosecution depended substantially on the evidence of the virtual complainant. She testified that on the 30th July, 1996, at about 9 p.m. she left her grandmother’s home to visit a friend, Natasha, who lived two houses away. From there she went to another house a few doors further away where a Mr. King lived. While in Mr. King’s gallery the appellant, whom the virtual complainant had known almost all her life, and another man entered the yard. They spoke to her. There is no report of what was said, but shortly after, the other man grabbed her by her right arm, pulled her out of the gallery and dragged her across the street to a building in which there were several apartments. All this time the appellant was about four steps behind them. The virtual complainant was taken into one apartment, where the appellant pushed her onto a bed and demanded sex. When she refused, he struck her on the face with what appeared to be a gun. He then lifted her skirt, pulled down her underwear and raped her. When he was finished he took her outside the building and left her there. She went to the home of her friend Natasha and later made a report to the police. A medical examination revealed that her hymen was absent. Human spermatozoa was found on a vaginal swab taken from her. She was 16 years of age at the time.
The police went to the home of the appellant a few hours later and arrested him. When confronted with the report made against him, the appellant according to the police officer replied: “Yes boss I aint do nothing, she seeing she period”.
The appellant testified in his defence that on the night in question he was in the company of two friends in the street outside the building in which the rape allegedly took place, when he saw the virtual complainant speaking to one Junior Charles. She then went with Charles into an apartment in that building, occupied by Anthony Pierre. A few minutes later, Pierre appeared on the scene and the appellant told him what he had observed. Pierre became enraged and proceeded to throw the virtual complainant out of his apartment. The appellant said that having seen that, he ‘heckled’ [i.e. taunted] the virtual complainant in response to which she threatened that she would ‘do for him’.
Pierre who was called as a defence witness, confirmed that the appellant spoke to him; but according to him all that the appellant told him was that Junior Charles was in his apartment. It was only after he went into his apartment, that he discovered the virtual complainant was there as well. He took her outside telling her she was under age and that he did not want her to return to his apartment with any man. He said that he forced her to kneel and kicked her in the face.
There were ten grounds of appeal filed. We found no merit in any of them except to the extent that they were relevant to an eleventh ground which was added with our leave at the hearing of the appeal. That eleventh ground was that “the trial Judge’s directions on the evidence were unbalanced in favour of the prosecution”. The original ten grounds can be dealt with quite shortly.
Ground 1 complained of the failure of the trial Judge to direct the jury properly on the mental element required for rape. More specifically, that he did not direct them that for the accused to be guilty of rape he must have known that the virtual complainant did not consent to having sex with him or was reckless as to whether she consented or not. It is true that in his initial exposition of what constituted rape the trial Judge did not mention this aspect of the ‘mens rea’. In a later passage, however, he did repair the omission, when in dealing with the mental element which had to be proved he correctly identified the relevant question as whether the accused intended o have sexual intercourse with the victim without her consent. In any case, on the evidence in this case there was no question of the accused having mistakenly believed that he had the victim’s consent so that the Judge’s failure to stress this aspect of the mental element was understandable and could not have done any harm.
Ground 2 complained of the Judge having wrongly directed the jury that the defence had admitted that the virtual complainant had been raped. There was indeed such a misdirection although it was partially corrected by the trial Judge when pointed out by defence counsel. Ground 3 complained of the emphasis that the Judge placed in the summation on the failure of the defence to suggest to the virtual complainant that she was not raped. Neither of these grounds by itself would have justified our interfering with the conviction and the matters which they raise are better considered under the new ground 11.
Grounds 4, 5, 6, 7 and 8 all relate to the count of kidnapping. Grounds 4, 5 and 6 allege misdirection with regard to the proof of a common enterprise. There is no substance in these complaints. Grounds 7 and 8 complain that the Judge directed the jury that they could rely on evidence of acts done by the other man who dragged the virtual complainant across the road, as evidence of a joint enterprise to kidnap in which the appellant participated. This complaint is totally misconceived. These acts were done in the presence of the accused, according to the prosecution’s evidence. There is therefore no reason why evidence of them should not be admissible against the appellant. The jury had to consider whether what the appellant did or did not do while these acts were being performed and immediately thereafter, satisfied them that he was privy to a plan to kidnap the virtual complainant.
Grounds 9 and 10 complained of the Judge’s direction with regard to inconsistencies in the evidence. Ground 9 complained that the Judge focused exclusively on inconsistencies in the defence. Ground 10 complained that the Judge did not direct the jury that even if they rejected the defence case because of inconsistencies, they would have to go back to the prosecution’s case to see if it was strong enough to justify convicting the appellant. The first of these complaints can also be considered in the context of the new Ground 11. With regard to ground 10 we do not think that in the context of the evidence in this case, the Judge’s failure to give the direction suggested amounted to a misdirection. The appellant placed himself in the environs of the apartment in which the rape allegedly took place. The issue whether he was at the material time outside the building or in the apartment with the virtual complainant was too tied up with the issue of his guilt to be treated as a separate issue. We turn our attention now to ground 11.
We allowed this appeal because we were satisfied that this ground was made out. In other words we concluded that unfortunately the learned trial Judge in this case stepped over the line which separates legitimate and permissible criticism and comment by a judge on and of the evidence given, and the arguments advanced, by or on behalf of an accused, from a failure by the judge to maintain such a balance in his summing-up as is necessary to avoid unfairness to the accused. This is a line which it is easy for a trial Judge to cross without noticing it, but when as in this case he does so, it is obvious in retrospect that this has happened.. We have come to the conclusion that the summing-up in this case was fundamentally unbalanced and unfair, as a result of the cumulative effect of a number of passages which it contains, some of which, if looked at individually, might not even have merited attention and none of which taken by itself would have justified our interfering with the conviction. Their overall effect, however, was to deny the appellant an integral element of due process under our system i.e. a summation which was fair and balanced, even if unfavourable.
The general directions which the Judge gave e.g. on the standard and burden of proof, were generally quite unexceptionable. When, however, the Judge came to comment on the evidence in the case and the points made by counsel to the jury, he took a line that was consistently and unremittingly adverse to the defence. This is perhaps best illustrated by what happened when toward the end of his summing-up the Judge asked defence counsel whether he had omitted to deal with anything relevant and counsel mentioned the medical certificate. What counsel had in mind was that that certificate had indicated that the virtual complainant was not a virgin as there was an absence of hymen. This served to remind the Judge that defence counsel had suggested to the jury that if they “married” three things i.e. the allegedly nonchalant attitude which the virtual complainant had evinced towards the defence case, the allegedly inadequate investigation carried out by Inspector Ramirez and the medical certificate, they would find the defendant not guilty. The Judge then launched into a lengthy and detailed refutation of the points that defence counsel had made with respect to each of these three matters. Not surprisingly, when at the end of it the Judge again afforded defence counsel an opportunity to remind him of some other topic that he had omitted to deal with, the offer was declined!
In fact, nowhere in the summing-up have I been able to find anything said by the Judge which would have suggested to the jury that there was some fact or circumstance that told in favour of the defence or was capable of raising a doubt about the prosecution’s case. On the contrary, as I have demonstrated, the Judge appeared to go out of his way to blunt and refute every single point that defence counsel attempted to make either in cross-examination or in addressing the jury. It may be said that if all the points made by the defence were bad points, then the Judge was entitled to bring this to the attention of the jury. The trouble is that not all the points made by the defence were bad points, nor for that matter were all the points made by the Judge in favour of the prosecution’s case, good ones. I will give some examples.
We did not have before us any transcript of counsel’s addresses nor did we have the notes of evidence. It would appear, however, that at some stage defence counsel made the point that the virtual complainant had not raised an alarm, called for help or offered any resistance while being taken across the road. The Judge dealt with this point in his summing-up in the following way:
“Now, there is nothing in the law that says in a case of this kind that there is any responsibility on the victim to create any kind of alarm, or to resist. There is nothing in the law that says if a victim does not get on in a similar fashion, there is no problem. There is nothing in the law that says that this must happen. I would like you to understand that as well. There is nothing that says that she must scream or draw somebody’s attention or she must make a big scene; she must resist. The law does not require that. If she does, you will consider it as part of the evidence. If she doesn’t, well, of course, there is no evidence with respect to that. I hope you understand that.”
With great respect to the learned Judge, this would merely have served to deflect the jury’s attention from the real point which was that if the virtual complainant had in fact been taken from the gallery of Mr. King’s house and dragged across the street at a time (9 to 9.30 p.m.) when there were still people awake and about, why did she not raise an alarm and call for help while all of this was happening? It was a matter for the jury to decide what weight, if any, they gave to the suggestion that her failure to do any of these things rendered her story improbable, but it was a suggestion which at least merited their attention. It must be borne in mind that on the virtual complainant’s evidence, it was only after she was taken inside the apartment that she saw any sign of a weapon. By refuting the suggestion (which no one had made) that the law required that the virtual complainant to raise an alarm, the Judge clouded the issue and may have caused the jury to miss the real point.
Immediately after the passage just quoted, the Judge dealt with the virtual complainant’s failure to report the rape immediately to her grandmother or anyone else at her home. This is what the Judge said about this:
“There is nothing in the law that says that she must go and report to her grandmother or her guardian or anybody else for that matter, save and except the police. There is nothing in the law that says now that she must make any complaint to anyone, be it guardian or anybody else. She has a responsibility like any other person who is aggrieved about anything in our society, to make a complaint to the police. The law expects that.”
The virtual complainant’s failure to complain to her grandmother after the rape would seem to be a much weaker point against her than her failure to resist or call for help before the rape. But to say that such a complaint was not required by law, was again hardly to the point. The real question was whether the virtual complainant’s behaviour immediately after the incident, was inconsistent with her having been raped. In this context, it was also not helpful to suggest a comparison between her position and that of “any other person who is aggrieved about anything in our society”.
There is also the Judge’s treatment of the medical certificate to which his attention was drawn by defence counsel. It was entirely proper and indeed necessary for the Judge to emphasise to the jury that the virtual complainant’s prior loss of her virginity did not mean that she could not be, or was not, raped, and the learned Judge did so in very forceful terms. But the Judge should also have made it clear to the jury that the fact that she was not a virgin was something which they were entitled to take into account in assessing the credibility of the defence case, which was that she had gone voluntarily into the apartment for the purpose of having sex with Junior Charles, more so as the Judge on more than one occasion stressed the tender age of the virtual complainant. It is not so much that the previous loss of her virginity would make the defence story more probable, but rather that it would, or might, make it less improbable. In any event, the appellant was entitled to whatever limited assistance his case might derive from the judge putting this piece of evidence in its proper perspective for the jury. This the Judge failed to do.
We recognize, and wish to re-affirm, that it is no part of the trial Judge’s duty to cover up the weaknesses of the defence case. Indeed the Judge is entitled, and may be bound, to direct the jury’s attention to the improbabilities and inconsistencies in the defence. The matter was aptly put by Simon Brown L.J. in Nelson (1997) Crim. L.R. 234 in the following passage taken from the transcript of his judgment and quoted by Rose L.J. in Peter Johannes & Others [2000] 2C.R. App. R. 361 at 382:
“Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in the summing-up. No defendant has the right to demand that the judge shall conceal from the jury such difficulties and deficiencies as are apparent in his case. Of course, the judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities – as plainly this appellant’s defence was – there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.
Why should pointing out those matters be thought to smack of partiality? To play a case straight down the middle requires only that a judge gives full and fair weight to the evidence and arguments of each side. The judge is not required to top up the case for one side, so as to correct any substantial imbalance. He has no duty to cloud the merits, either by obscuring the strengths of one side or the weaknesses of the other. Impartiality means no more and no less than that the judge shall fairly state and analyse the case for both sides. Justice moreover requires that he assists the jury to reach a logical and reasoned conclusion on the evidence.”
Some of the criticisms of the defence made by the learned trial Judge in the instant case seem justified and no objection can be taken to them. It is difficult to be sure without the notes of evidence but if defence counsel did fail to put to the prosecution witnesses significant aspects of the defence case e.g. that no one raped the virtual complainant, then it was quite proper for the Judge to bring this to the attention of the jury. But he should have explained the reason for the rule requiring the defence case to be put and identified the different inferences that might be drawn from a failure to do so.
It was also entirely proper for the Judge to draw attention to significant inconsistencies in the evidence led by the defence. One such inconsistency to which the Judge did refer was the difference in the accounts given by the appellant and Anthony Pierre as to the conversation they had prior to Pierre going to his apartment. According to the appellant he told Pierre that the virtual complainant was in his apartment with Junior Charles. The appellant further said that on hearing this Anthony Pierre became extremely angry and cursed and quarrelled. Pierre on the other hand, according on the Judge’s summary of his evidence, denied that the appellant had told him that the virtual complainant was in his apartment, or that he got angry on being told so. According to Pierre it was only on entering his apartment that he discovered her presence there. It was quite in order for the Judge to call attention to this discrepancy, but there are two aspects of the way in which the Judge dealt with discrepancies, which tend to confirm the impression of a fundamentally imbalanced summing-up. The first is the lengths to which the Judge went in discovering and detailing discrepancies in the defence. Some of the discrepancies he mentioned and appeared to treat as important, seem to us quite insignificant. For instance the Judge put considerable emphasis on discrepancies between the accounts given by the appellant and his mother of what transpired when the police arrested him at his home. But did it really matter greatly for instance, whether it was his mother or the police who woke the appellant? Yet this is one of the discrepancies highlighted by the Judge.
Another criticism which is made (see ground of appeal No. 9) is that the Judge never mentioned a single discrepancy in the evidence of the prosecution, but focused exclusively on those in the defence. It may be of course that there were no discrepancies in the evidence of the prosecution, but why then did the Judge say: “But I will point out the discrepancies for you and you will make what you want of it. The same thing for the case of the State”? Insofar as this was a promise to refer to discrepancies in the prosecution’s case, it remained unfulfilled.
It must also be said that some of the positive points which the Judge made in favour of the prosecution, were at best of doubtful validity. It is possible that the jury having so judged them, rejected them, but a jury may tend to accept uncritically points made by the Judge. What then were these dubious points made by the trial Judge in the prosecution’s favour?
The Judge repeatedly suggested to the jury in very strong terms that it was unlikely that the virtual complainant would falsely accuse the appellant of raping her, stressing in this connection that they had known each other since early childhood. This was a legitimate point, although it might have been balanced by the Judge also pointing out to the jury that people lie (particularly about rape) for all sorts of reasons which it is often difficult to identify and prove. But the Judge did not stop there, he went on to say this:
“Now, you are also entitled to ask yourself having regard to all the evidence, why would a girl at her tender age of 16 years … want to lie on Marlon John, when there were other male people around like Keston? She didn’t bring him up, she didn’t call any names. You are entitled to ask yourself that as well.”
It may be questioned whether the virtual complainant’s youth was relevant to her credibility, especially bearing in mind that the evidence suggests that she may have been sexually precocious. More importantly, however, the evidence of the appellant did provide a possible explanation of why she might have chosen to make the false allegation of rape against him rather than any of the other men who were there. It is that she blamed him for alerting Anthony Pierre to what was taking place in his apartment. One does not know what weight, if any, the jury would have given to that explanation, but it was one which the appellant was entitled to have put to the jury, once the question was raised with them: why would she make the allegation against the appellant, and not one of the others?
Another aspect of the imbalance in the summing-up was the Judge’s failure to put the defence fully and accurately to the jury. To start with, the Judge made an unfortunate error when he told the jury that the defence was admitting that the virtual complainant was raped (see ground of appeal No. 2). Even when his error was pointed out by defence counsel the Judge tried to justify what he had said on the basis that it had not been put to the virtual complainant in cross-examination that she was not raped. Whatever was or was not put in cross-examination of the virtual complainant, it was clear from the evidence given by the appellant and his witness that his case was that the virtual complainant had gone voluntarily with Junior Charles into Anthony Pierre’s apartment for the purpose of having sex. Accordingly, it was quite wrong to suggest that the defence accepted that she had been raped. We also suspect that the Judge may have temporarily lost sight of the defence when he described the evidence that spermatozoa was found on the vaginal swab taken from the virtual complainant as ‘significant’. That evidence was after all equally consistent with the virtual complainant having had consensual sex with Junior Charles (although admittedly the time available for this, based on the appellant’s evidence, would have been quite short). In that context the finding of spermatozoa on the vaginal swab was not necessarily significant.
Secondly the Judge unfairly diminished the credibility of the defence by suggesting that the defence case involved an allegation of conspiracy between the virtual complainant and the police, and by inviting the jury to consider whether it was likely that a person as young as the virtual complainant could exercise that sort of influence over the police, so as to get them “to fabricate a story, a case against an innocent man … .” There was in fact nothing in the defence case which involved any allegation of conspiracy between the virtual complainant and the police. The only evidence which the police gave that incriminated the appellant was that in denying the allegation of rape he had said to them that the virtual complainant “was seeing her period”. The appellant denied saying that. If the jury accepted the appellant’s denial of this statement, then it would simply mean that the police had fabricated a ‘verbal’ in order to bolster the case against a man whom they probably believed to be guilty, something which rightly or wrongly, the police are quite frequently accused of doing. That hardly warrants being described as a conspiracy between the police and the virtual complainant, or suggests the exercise of any influence by the virtual complainant over the police.
There is another feature of the way in which the Judge presented the evidence for the defence which warrants comment. It is that his summary of the evidence for the defence was interspersed with great frequency with critical comments. As was pointed out by Simon Brown L.J. in the passage quoted earlier in this judgment, the defendant is not entitled to have his defence “rehearsed blandly and uncritically”, but in our view fairness demands that the summary of the evidence for the defence given by the Judge be not so cut up by criticism and comment as to cause it to lose its coherence. We think it is preferable that the defence case at some stage be summarised to the jury as a discrete whole without interruption by comments and criticisms, these being reserved to the end of the summary or if the Judge prefers, distributed passim through the rest of the summation.
The final comment we would make on the way in which the Judge presented the case for the defence was that he perhaps did it less than justice when he suggested to the jury that the question for them was whom they believed as between the appellant and the virtual complainant and failed to mention that the defendant’s case was supported at least in its most fundamental aspects, by the evidence of Anthony Pierre.
We have sought to explain in some detail why we came to the conclusion that the summing-up in this case was fundamentally unbalanced. We would like to end by stressing, as we did at the beginning of this judgment, that it is the cumulative effect of all the aspects of the summing-up identified above that have led us to this conclusion.
Since we found the summing-up to be fundamentally unbalanced, we had no option but to quash the conviction. This is one of those situations in which no question of applying the proviso can arise. In any case, the evidence for the prosecution in this case was not so overwhelming as to have justified invoking the proviso even if it were available. On the other hand, there was present in this case none of the factors such as undue and protracted delay which would have militated against ordering a re-trial. There was no question of a re-trial unfairly giving the prosecution an advantage or putting the defence at a disadvantage. Accordingly, we considered it appropriate to order a re-trial and did so.
M.A. de la Bastide
Chief Justice
L. Jones
Justice of Appeal
A. Lucky
Justice of Appeal
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