David Baptiste v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Narine, J.A.
• Judgment Date: 27 April 2018
• Neutral Citation: TT 2018 CA 23
• Docket Number: Crim. App. No. 023 of 2016
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 27 April 2018

Court of Appeal

Yorke-Soo Hon, J.A.; Narine, J.A.; Mohammed, J.A.

Crim. App. No. 023 of 2016

David Baptiste

and

The State

Appearances:

Mr. C. Selvon for the Appellant.

Mrs. A. Teelucksingh-Ramoutar, Assistant D.P.P., for the Respondent.

Cases referred:

Goldson and McGlashan v. R (2000) 56 W.I.R. 444

Tido v. R [2001] U.K.P.C. 16

Boyce v. R BB 1985 CA 16 (Barbados)

R v. Beveridge (1987) 85 Cr. App. Rep. 255

R v. Turnbull [1977] Q.B. 224

Crossdale v. R (1995) 46 W.I.R. 278

Boodram v. The State Cr App. No. 17 of 2003

Benjamin and Ganga v. The State of Trinidad and Tobago [2012] U.K.P.C. 8

Mapp and Bissoon v. The State Cr. App. Nos 13 and 14 of 2012

R v. Makanjoula; R v. Easton [1995] 1 W.L.R. 1348

R v. Blasiak [2010] E.W.C.A. Crim. 2620

R v. Hanson [2005] E.W.C.A. Crim. 824

R v. Dossett [2013] E.W.C.A. Crim. 710

R v. Weir and others [2005] E.W.C.A. Crim. 2866

Stafford and Carter v. The State (1998) 53 W.I.R. 417

Reid v. R (1978) 27 W.I.R. 254

John (Jason) v. The State (2005) 67 W.I.R. 330.

Legislation:

Section 15N(1) of the Evidence Act

Section 44 (1) of the Supreme Court of Judicature Act

Criminal appeal - Sexual intercourse with a minor — Character evidence — Identification — Whether the judge's failure to hear and determine the admissibility of the confrontation as asserted, resulted in a material irregularity that was prejudicial to the appellant — Whether a voir dire was required to determine disputed issues of fact relevant to the confrontation exercise — Whether the judge's ruling in the presence of the jury that a confrontation was conducted was a usurpation of the role of the jury which resulted in a material irregularity that was prejudicial to the appellant — Whether the judge allowed evidence which deprived the appellant of the right to a fair trial — Whether a corroboration warning was necessary — Whether the judge failed to warn the jury on certain significant issued raised in the trial — Whether the judge erred in allowing the prosecution to lead evidence of the alleged rape as proof of the appellant's bad character — Judge's failure to conclude that it would have been unjust to rely of the evidence of the alleged rape — Whether the judge's errors were substantial enough to lead to a miscarriage of justice — Whether a retrial should be ordered

Majority Judgment Delivered by M. Mohammed, J.A. A. Yorke-Soo Hon, J.A. Concurring. R. Narine, J.A. Dissenting.

INTRODUCTION

1 (1) On the 11th May, 2016, the appellant, David Baptiste, was convicted of the offence of having sexual intercourse with the virtual complainant, HB, without her consent. He was sentenced to twenty-two years imprisonment with hard labour.

The appellant has appealed his conviction.

THE CASE FOR THE RESPONDENT

2 (2) On the 10th June, 1997, at around 2:30 p.m., the virtual complainant, HB (HB), who was then fifteen years old and a student of the Siparia Senior Comprehensive School, travelled from La Brea Trace to a gas station in Siparia. While walking towards her home at Quinam Road in Siparia, she saw the appellant, who was driving a white Mitsubishi Lancer motor vehicle, proceeding in the direction of Siparia. The appellant stopped and had a conversation with HB and offered to give her a ride home. HB entered the front passenger side of the car and sat down.

3 (3) The appellant drove in the direction of Quinam and upon reaching Rogers Hill, he turned into one of the side roads and brought the car to a stop. He asked HB if he could kiss her on her cheeks and she refused. When HB turned to look at the appellant, he held on to her chin and kissed her on her lips. The appellant then drove a short distance further and stopped the car in a lonely area along a gravel road. He got out of the car and went to the front passenger side where HB was seated. The appellant ordered her out of the car and when she refused, he opened the door and pulled her out. He then began kissing her on her neck and on her lips. While this was happening, HB tried to push the appellant off of her but she was unsuccessful. The appellant rubbed his hand on HB's legs and raised up her skirt. He then proceeded to have sexual intercourse with her without her consent. During the sexual intercourse, HB experienced pains and began crying. She begged the appellant to stop but he refused. The appellant eventually withdrew his penis from her vagina, and HB observed a white substance coming out from his penis. The appellant then fixed his clothes, opened the front passenger side door and allowed HB to sit down.

4 (4) The appellant drove out of the side road and stopped at Quinam Road. He told HB that he did not want anyone to see him coming out of that road and instructed her to get out of the car but to leave her school bag. HB exited the car and proceeded home. Approximately thirty minutes had elapsed from the time that HB entered the appellant's car to the time that she was dropped off at Quinam Road. Before that day, she had seen the appellant a couple of times at the Stop and Shop grocery store.

5 (5) Later that same day, HB, in the presence of her mother, reported to the Siparia Police Station that she had forgotten her school bag in a taxi. She did not inform her mother of the incident involving her and the appellant as she was afraid that she would have been beaten. The next day, HB related the incident to two of her classmates who advised her to make a report to the police. After school that day, HB proceeded to the Criminal Investigations Department in Siparia, along with her mother, where she made a report to PC Prince. PC Prince and WPC Clement then took HB to a medical doctor, Dr. Bhimsingh, where she was medically examined. Dr. Bhimsingh observed that the hymen was not intact and that there was no active hemorrhaging. He took a high vaginal swab from her, placed it in a sealed tube and gave it to WPC Clement.

6 (6) HB took the police officers to the place where the offence was alleged to have occurred and pointed out certain areas to them. The police officers then took her home and she gave them the items of clothing which she was wearing at the time of the incident, namely a skirt, shirt and underwear. The items of clothing, along with the vaginal swab were taken to the Forensic Sciences Centre for analysis. A Certificate of Analysis in relation to those items, dated the 3rd September, 1997, was later obtained which revealed that human spermatozoa was found on HB's underwear and on the high vaginal swab.

7 (7) On the 19th June, 1997, PC Prince was on duty at the Siparia Police Station when the appellant arrived with a woman named Patricia Charles, whom he claimed was his mother. PC Prince informed the appellant of the report made against him by HB and told him that he was a suspect in the matter. The appellant replied, “The girl stop me and just open my car door and jump in the vehicle and tell me to drop she home. Ah tell she ah ain't going in Quinam because 1 just drop a girl in Quinam and ah tell she to get out my car and she come out dey and she gone.” PC Prince told the appellant that he intended to place him on an identification parade and he replied, “No problem.” PC Prince then informed the appellant of his constitutional rights and privileges.

8 (8) On the 20th June, 1997, Supt. Ganga entered an enclosed room at the Police Divisional Headquarters in Siparia where he met the appellant and Attorney-at-law, Mr. Rambachan. Supt. Ganga informed the appellant that he was a suspect in the matter which he was investigating. He cautioned the appellant and told him that he intended to place him on an identification parade. The appellant replied, “I done tell them already me ain't rape no girl, is ah drop I give she… Me ain't going on no ID parade.” HB was then called upon to identify the appellant and she positively identified him as the man who had sexual intercourse with her without her consent, saying, He is the man.” The appellant then replied, “I only give she a drop.” The appellant was cautioned and informed of his constitutional rights and privileges and was subsequently charged with the offence in question.

9 (9) The appellant attended the Siparia Magistrates' Court in relation to the subject offence during the period 23rd June, 1997 to 30th December, 1999. The matter was adjourned to the 31st January, 2000. The appellant however did not attend court on that day and a warrant was issued for his arrest. PC Prince gave evidence that the appellant had absconded and left for the United States of America (the US). He returned to the jurisdiction in 2008 as a result of a deportation order made against him and the warrant for his arrest was eventually executed.

THE EVIDENCE OF BAD CHARACTER

10 (10) At the trial, the prosecution successfully applied to adduce bad character evidence in relation to the appellant in the form of an allegation, more specifically, a charge which was dismissed by a magistrate on the 1st April, 2010. They did so under section 15N(1)(d) of the Evidence (Amendment) Act, as an important matter in issue between the accused and the prosecution.

11 (11) The prosecution called as a witness, SL who testified that on the 31' December, 1999, the appellant had sexual intercourse with her without her consent in somewhat similar circumstances as HB. She testified that on the day in question, she had returned home from work at around 11:00 p.m. when she received several phone calls from the appellant. She first met the appellant at a nightclub approximately two months prior to that day. SL and the appellant also met on a few occasions in Port of Spain and at SL's workplace. On the day in question, the appellant contacted SL via telephone and asked her to “hang out” with him. SL refused his offer but the appellant persisted in his actions. SL eventually agreed to “hang out” with him and gave him directions to her house, where he...