George v the State
| Jurisdiction | Trinidad & Tobago |
| Judge | Yorke Soo-Hon, J.A. |
| Judgment Date | 15 December 2009 |
| Neutral Citation | TT 2009 CA 46 |
| Docket Number | Criminal Appeal No. 22 of 2008 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 15 December 2009 |
Court of Appeal
Weekes, J.A.; Yorke Soo-Hon, J.A.; Bereaux, J.A.
Criminal Appeal No. 22 of 2008
Ms. Gillian Lucky for the State.
Mr. Mario Merritt for the appellant.
Criminal law - Rape — Appeal against conviction and sentence — Whether trial judge wrongly admitted irrelevant, highly prejudicial evidence.
The appellant was indicted on three counts of rape. The indictment read as follows:
Statement of Offence
Rape, contrary to section 4(1) of the Sexual Offences Act, 1986, as amended.
Particulars of Offence
That Roy George, on the 30th day of March 2003, at Carenage, in the County of St. George, had sexual intercourse with Crystal Roberts without her consent.
Statement of Offence
Rape, contrary to section 4(1) of the Sexual Offences Act, 1986, as amended.
Particulars of Offence
That Roy George, on the 10th day of May 2003, at Carenage, in the Country of St. George, had sexual intercourse with Crystal Roberts without her consent.
Statement of Offence
Rape, contrary to Section 4(1) of the Sexual Offences Act, 1986.
Particulars of Offence
That Roy George, on a day unknown between the 30th day of June 1997 and the 1st day of September 1997 at Carenage, in the Country of St. George, had sexual intercourse with Crystal Roberts, a friend, who is not his wife without her consent.
The appellant was acquitted on the first two counts and found guilty on the third and sentenced to 20 years hard labour. He appealed against the conviction and sentence on three (3) grounds:
(1) The verdict of guilty brought in by the Jury is unreasonable and cannot be supported by the evidence for the reason that is inconsistent with the verdicts of ‘Not Guilty’ brought in one the other charges of the indictment.
(2) The learned trial judge wrongly admitted irrelevant and/or highly prejudicial evidence the probative value of which did not and could not outweigh the prejudice caused, specifically the evidence of the appellant's involvement in either the procuring and or assisting in the procurement of an abortion by the virtual complainant.
(3) The sentence was too severe.
However, when the appeal came up for hearing the Court through its President, Madam Justice of Appeal Weekes, then sought the assistance of counsel on both sides as regards the subject of specimen counts as it related to the indictment.
This issue became important to this appeal since the learned trial judge directed the jury that the charges as laid were specimen charges in that they represented ‘numerous other offences’ that the Prosecution alleged the appellant committed. This is what was said in the summing up at page 10 lines 17-27:
Counts 1 to 3 are specimen counts, as they are known. The Prosecution alleges that the accused also committed numerous other offences of the same kind on a monthly basis over the period 1997 to 2003. Instead of loading up the indictment with counts charging many offences, the Prosecution has selected three as examples, the counts on the indictment, as they are entitled to do. However, you may convict the defendant only if you are sure that he committed the particular offence charged in Count 1 and/or 2 and/or 3 whether or not you are sure that he also committed other such offences.
The question for determination is whether the judge was correct in treating Counts 1 to 3 as specimen counts.
Blackstone's Criminal Practice 2009 defines specimen counts at paragraphs D11. 33 - D11.34 under the rubric “Specimen or Sample Counts” -
Where a person is accused of adopting a systematic course of criminal conduct, and where it is not appropriate to allege a continuous offence or a multiple offending count, the prosecution sometimes proceeds by way of specimen or sample counts. For example, where dishonesty over a period of time is alleged, a limited number of sample counts are included so as to avoid too lengthy an indictment.
Procedure for Specimen Counts. The practice which the prosecution ought to adopt in these circumstances is as follows:
(a) the defence should be provided with a list of all the similar offences of which it is alleged that those selected in the indictment are samples;
(b) evidence of some or all of these additional offences may in appropriate cases be led as evidence of system;
(c) in other cases, the additional offences need not be referred to until after a verdict of guilty upon the sample offence is returned.
Ms. Lucky acknowledged on behalf of the respondent that although during the trial the Prosecution had led evidence to show a systematic course of conduct which commenced sometime after June 30, 1997 until May 10, 2003 the counts as stated in the indictment did not conform to the principles set out above.
Counsel submitted that none of the counts laid out in the indictment appeared to be specimen counts.
This Court agrees. The allegation made in each ground was that rape was committed on a particular day. The learned trial judge erred when he directed the jury that the charges were specimen or sample charges. The Prosecution should not have been allowed to lead evidence of alleged offences for which the appellant was not charged.
This is the first time that this Court has been faced with the question of whether an indictment contained sample charges and whether a trial judge was correct in directing a jury that the indictment was so drafted. In the circumstances we wish to set out the law as it relates to specimen charges.
The English Court of Appeal dealt with specimen counts in the case of R v. Kidd, R v. Canavan, R v. Shaw 1 [1998] W.L.R. 604. Lord Bingham of Cornhill, C.J. stated the issue to be decided as:
“If a defendant is indicted and convicted on a count charging him with criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may the Court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the Court to take them into consideration when passing sentence?”
The learned judge noted that for years prosecuting authorities had framed indictments to include specimen counts said to be representative of other criminal offences of a like kind committed by the defendant. One example of an instance where this might be done was given as a case where a defendant is said to have sexually abused a child frequently over a period of time, but the child is unable to particularize any specific occasions on which the abuse occurred. In such a case two or three specimen counts might be included in the indictment and the victim would give evidence of the frequency with which the abuse occurred. Lord Bingham explained that in such a situation where the jury convicts the defendant on one or more specimen counts, the practice of the Court has been to pass a sentence which takes account not simply of the isolated instances specified in the counts but also of the conduct of which those counts are representative.
The learned judge clearly stated that such an approach was incorrect at page 607 para. B-D:
“A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the Court to take into consideration when passing sentence: see Req. v. Anderson (Keith) [19781] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.
It is said that the trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as it was put in Req. v. Huchison [1972] 1 W.L.R. 398, 400 is to “deprive the appellant of his right to trial by jury in respect of the other alleged offences.” Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.
In essence the learned judge held that it offended a fundamental principle of sentencing for the defendant to be sentenced not only for the specific offences of which he had been convicted after trial, but also for other specimen offences of which the defendant had neither been convicted, nor to which he had pleaded guilty nor agreed to have taken into consideration.
The dicta in R v. Kidd was considered and applied in the later case of R v. Tovey [2005] E.W.C.A. Crim 530. In Tovey the appellant was charged with 11 offences, nine counts of offences contrary to the Explosive Substances Act, 1883 and the Firearms Act, 1968 and two counts of racially aggravated criminal damage to property, contrary to the Crime and Disorder Act, 1998, section 30. The appellant pleaded guilty to the first nine counts and, after a trial, was convicted of the counts alleging racially aggravated criminal damage. These two counts related to two specific incidents. The prosecution's case was that there had been a total of 17 separate but similar incidents of criminal damage over a period of some months. Evidence of all the instances of damage was called as part of its case, and the prosecution presented...
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