Diaz v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | Bernard, C.J. |
| Judgment Date | 09 June 1989 |
| Neutral Citation | TT 1989 CA 46 |
| Docket Number | Crim. App. No. 36 of 1987 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 09 June 1989 |
Court of Appeal
Bernard, C.J., Edoo, J.A.; Sharma, J.A.
Crim. App. No. 36 of 1987
B. Dolsingh for the appellant
Paula May-Weekes for the respondent
Criminal law - Appeal against conviction — Rape.
Practice and procedure - Trial by jury — Directions to the jury — Evidence — Rape — Whether judge erred in admitting evidence — Whether jury misdirected — Directions deficient — New trial ordered — Evidence Act, Cap. 7:02, s. 2.
On 24th November, 1987, the applicant was convicted at the Port-of-Spain Assizes of the offence of rape and was sentenced to a term of 30 years with hard labour and ordered to receive a flogging as well. He has sought leave to appeal against the conviction and/or sentence. The facts of the case were these. Both parties’ parents were neighbours. They occupied twin apartments at Eastern Min Road, Tacarigua. The victim's mother occupied the apartment at the back. The victim was a member of that household. The applicant's mother occupied the one at the front. Unlike the victim, the applicant was a married man and lived elsewhere.
On the day in question the victim's mother left home around mid-day leaving the victim at home. About an hour later the victim, (who was a young girl their) was with her brother, (who was also a young boy at the time) a little way from their home. The applicant, who was well-known to them, approached them and asked for some water. Just about this time two other children came and called her brother away. The latter left and went away with them. Immediately thereafter, the victim went to fetch the water fear the applicant. The latter followed after her and into the kitchen of the house where she had gone to fetch him the water for which he had asked. When she did so and offered him the glass of water, the applicant refused it because it was not cold. What he wanted, he claimed, was ice water. He then put the glass down, placed his hand over her mouth and forced into the bedroom.
There he threw her on the bed, put a blanket over her mouth, threatened her and with one of his knees planted on her tummy proceeded to ravage her. Shortly after the outrage the victim went to the home of another neighbour living nearby by the name of Elizabeth Parmasar. Mrs. Parmasar found her in a state of distress. she was crying and when this witness enquired into the reason for this state of affairs, the victim told her that the applicant had raped her. Mrs. Parmasar kept the victim at her home to await her mother's return. The latter did so sometime about 1:30 p.m. and called at Mrs. Parmasar's home where she found the victim in tears. As a result of what she was told by Mrs. Parmasar, she immediately took her daughter to the police station for the area and lodged a report there. Later that same afternoon the victim was examined by Dr. Davis. The examination was painful. The victim was shaken and withdrawn. A vaginal swab taken from the victim confirmed that intercourse had taken place.
Sergeant Barton saw and spoke with the applicant at his home towards evening time that same day. When challenged and cautioned the applicant stated “what I have to say I will say in court.” The victim's brother confirmed that part of the story involving him. As against this the applicant admitted that he was on the scene that same afternoon but denied that he had sexually molested the victim. He had, had cause, however, to strike the victim and no more because she had “said something about Linda, my wife.” The necessity for his striking her had come about this way. He had gone that afternoon to his mother's home to repair a cupboard. He had in fact come upon the victim and her brother outside their apartment and did ask for water.
Other children did come and call the victim's brother and he had left with them. The incident between the victim and himself over the glass of water did take place. However, he never went with the victim into her house to procure the water. He had stayed in front of it at all times during this episode. As the victim was unable to provide him with iced water, he was about to go to his mother's place next door to get it.
Just then the victim told him that her mother had left home since morning. She then asked him for two dollars ($2.00) so that she could get something to eat. He did not give her any money. Instead, he suggested that she should go to his home and ask his wife for nourishment. The victim then said Asomething” about his wife. So he struck her, left and went to his mother's place. When he struck her, she began to cry. Four complaints were lodged against the summation of the learned trial judge. Two of these were abandoned at the hearing of the appeal.
The first of the remaining two challenged the admissibility into evidence of the compliant by the victim to Mrs. Parmasar. Reference was made to s.31 of the Sexual Offences Act, 1986. It was submitted that the admission into evidence by the learned trial judge of the complaint to Mrs. Parmasar was in breach of the section in question. It was urged that this was a procedural breach which went to the root of the trail. Reference was made to the cases of Herridge v Herridge [1965] 1 W.L.R. 1506; Blyth v Blyth [1966] A.C. 643House of Lords); Selangor United Rubber Co. v Cradock (No.2) [1968] 1 W.I.R. 319; Unganda v Kirya and Others (1985) Law Reports (Commonwealth) (Criminal) 58; and section 77 of the Criminal Procedure Ordinance Chap. 4 No. 3 (since replaced by section 72 of the Criminal Procedure Act Chap. 12:02).
For the State it as urged that notwithstanding s.31 of the Sexual Offences Act, the evidence of the complaint was admissible. This was a legal proceeding that was caught by the provisions of s.27 (1) (e) of the Interpretation Act Chap. 3:01 which allows for an investigation or legal proceedings which had been commenced before the enactment to be proceeded with under the old law - in other words as if the enactment had not been passed. Alternatively, the enactment was prospective. Further, it effected a substantive change in the law. In the event, the applicant's right to complain could only arise if the enactment effected to make his position worse than it was before it became operative. This was not, it was submitted, the case here. Accordingly, the applicant could not invoke the protection of the section. Reference was made to Re Rayson [1891] 63 L.T. 709; R v Reah [1968] 3 All E.R. 269; Maine v. Stork [1890] 15 A.C. 384; Swire v. Cookson [1883] 48 L.T. [1877] A.C.; [1884] (House of Lords) 9 A.C. 653.
At Common Law a recent complaint of a sexual outrage by a person upon another was admissible into evidence on a criminal charge of the former, not to prove the truth of the matters stated but to show consistency of conduct with the victim's testimony in the witness box and where consent is in issue to show that the victim's conduct was inconsistent with consent. The recipient - not the maker - of the complaint was permitted to give this evidence but only for this limited purpose. This rule of evidence was at one time considered to be one of the exceptions to the Hearsay Rule. See in this connection Archbold - 36th Ed. - Para. 1071 P. 390. Today, it is correctly classified as one of the exceptions to the rule against the admissibility of self-serving statements. See in this connection Archbold - 42nd Ed. --Para. 4 - 307 and Para. 4 - 308 pp. 402 - 404.
See also Phipson - Evidence - 13 th Ed. - Para. 9 - 81 - p.150 et seq; Cross-Evidence - 5 th Ed. - pp. 237 - 244; The purpose of the rule was an attempt by the courts in the day to day administration of the law and of justice to balance the scales between ulterior motives on the part of a female for raising a hue and cry over the outrage on the one hand and the genuineness of her assertion on the other, both of which were designed to avoid miscarriages of justice. Hence the reason as well for the application of the evidential rule of corroboration in cases of this kind and tow which topic we shall come in a moment. Section 2 of the Evidence Act Chap. 7:02 provides that:
“Whenever any question arises in any action, suit, information, or other proceeding in or before any court of justice, or before any person having by law or by consent of parties authority hear, receive, and examine evidence touching the admissibility or the sufficiency of any evidence, or the competency or obligation of any witness to give evidence, or the swearing of any witness, or the form of oath or of affirmation to be used by any witness, or the admissibility of any question put to any witness, or the admissibility of any question put to any witness, or the admissibility or sufficiency of any document, writing, matter or thing tendered in evidence, every such question shall be decided according to the law in force in England on 30 th August, 1962.”
The law in force in England on the date appointed in s.2 of the Evidence Act was that which is stated earlier herein. It follows that by this section our Common Law Rule of evidence with regard to the admissibility of a recent complaint in sexual and kindred offences was for all purposes the same as that obtaining in England.
On 11 th November, 1986, the Sexual Offences Act (“the Act”) came into force. It was passed in accordance with the constitutional prescriptions. The long title of the Act stated that it was one “to repeal and replace the laws of Trinidad and Tobago relating to sexual crimes to the procuration, abduction and prostitution of persons and to kindred offences.”
Section 31 of the Act states that:
“The common law rules relating to evidence of a recent complaint in sexual offence cases are abolished.”
It should be noted that the section contains neither a proviso, limitation nor postponement clause. Now it is not for the courts to question the wisdom of this...
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