Norbert Aaron v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Yorke-Soo Hon, JA,M. Mohammed, JA,G. Lucky, JA. |
| Judgment Date | 31 May 2022 |
| Neutral Citation | TT 2022 CA 51 |
| Docket Number | Crim. App. No. S026 of 2017 |
| Court | Court of Appeal (Trinidad and Tobago) |
A. Yorke-Soo Hon, J.A.
M. Mohammed, J.A.
G. Lucky, J.A.
Crim. App. No. S026 of 2017
CR. No. S098/2012
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Mr. J. Singh, Mr. D. Khan, Mrs. U. Nathai-Lutchman, Mr. M. Gayle and Ms. M. Gonzalez appeared on behalf of the Appellant.
Mr. G. Busby and Mrs. S. Dougdeen-Jaglal appeared on behalf of the Respondent.
Joint Judgment delivered by A. Yorke-Soo Hon, JA; M. Mohammed, JA; and G. Lucky, JA.
The Appellant was charged with attempted incest, two counts of grievous sexual assault and two counts of indecent assault. He was convicted by a jury on all counts. He was sentenced to twenty years imprisonment for the offence of attempted incest, sixteen years imprisonment on the two counts of grievous sexual assault and five years imprisonment on the two counts of indecent assault. The sentences were ordered to run concurrently.
The Appellant has appealed his convictions.
The virtual complainant, P.A., (the VC) was the Appellant's eldest daughter. At the trial, she gave evidence in relation to her age, address, occupation and family structure. Thereafter, in the absence of the jury, she indicated to the court that she no longer wished to give evidence in the matter 1. She explained that she had, in effect, moved on with her life and was trying to have a relationship with her father again 2.
In the presence of the jury, the prosecutor questioned the VC in relation to: (i) whether she recognised what was depicted in a photograph shown to her, (ii) whether she lived with her father and three sisters during the years 2008 to 2009, (iii) whether she remembered a Sunday in the month of April, 2008 (the first date of the incidents referred to in the indictment), and (iv) whether she recalled giving a statement to the police on November 2, 2009. In response to each, the VC indicated that she did not wish to answer any questions 3.
An application was successfully made to treat the VC as a hostile witness, pursuant to section 5 of the Evidence (Amendment) Act Chapter 7:02 (EAA).
Thereafter, the VC was asked to identify her signature on a document and she indicated that she no longer wished to proceed with the matter. She explained that she could not recall many of the incidents, which would have occurred, and that she now had a relationship with her father and did not wish to see him go to prison 4.
The VC was shown the two statements which she would have given to the police and her deposition from the Magistrates' Court. She refused to identify her signatures on those documents or to answer further questions.
The prosecution thereafter called the recorders of the statements and the deposition to give evidence about the circumstances surrounding the recording of those documents.
The VC was recalled to the witness box and the contents of her previous statements and her deposition were put to her. She refused to answer any questions. Following this, the prosecution made an application pursuant to section 15H of the EAA to admit the documents into evidence. The two statements which she gave to the police as well as her deposition were subsequently read into evidence.
In her statements to the police and in her deposition, the VC gave details of the sexual acts perpetrated against her by the Appellant, which were alleged to have occurred on various days in the years 2008 and 2009.
The VC said that on either Sunday 13 April, 2008 or Sunday 20 April, 2008, she was at her home in Mafeking Village in Mayaro. She lived there with her father and three younger sisters. Her parents were separated and her mother resided elsewhere. She was 15 years old at the time.
Around 8:00p.m., she was watching television on the couch, when the Appellant arrived home. He sat next to her on the couch and began “tickling” around her navel. He asked her if she wanted to try something and she replied in the negative. The Appellant then put his hand inside her pants and pulled down her pants and underwear. He positioned her with her body halfway off the chair, stepped down in front of her and sucked on her vagina for approximately two minutes. The Appellant then pulled up her pants and underwear and asked her, “ How you trembling so, you frighten or what?” He asked her if she knew about getting her vagina sucked and she replied in the negative. He told her that she had just experienced it and that if she ever heard children in school talking about it, she would know what it felt like. The Appellant told the VC not to tell anyone what he did because this would lead to him going to prison and her mother was not financially secure to take care of her and her sisters. He also told her that the reason that he was doing this to her was because his side of the family was “hot-blooded”On August 27, 2008, around 5:15a.m., the VC was lying in her bed when the Appellant came into the room and laid on top of her. He raised up her top and sucked on her breasts. He asked her if she wanted to have sex with him and she replied in the negative. The Appellant then took off the VC's pair of pants and sucked on her vagina. She pushed him off and asked him what he was doing. The Appellant attempted to put his penis into her vagina and told her that her vagina was too small. He proceeded to insert his index finger into her vagina. The VC pushed him off and he said to her, “ I just wanted you to know yuhself.” The VC fixed her clothes and the Appellant left for work.
On a day in September, 2009, around 5:00a.m., the Appellant got into the VC's bed and laid on top of her. He took off her top, sucked on her breasts and also sucked on her vagina.
On October 2, 2009, the VC asked the Appellant to attend her friend's birthday celebration in Arima. The Appellant proceeded to lay on top of her and touched her on her vagina, before giving her permission to go.
On October 31, 2009, the VC, her sisters and her mother went to a restaurant in Mayaro to celebrate the VC's birthday. Whilst there, the VC went to the bathroom and began crying. Her mother met her in the bathroom and saw her crying. They had a conversation and then proceeded to the Mayaro Police Station where they made a report to WPC Toussaint. That afternoon, Sgt. Doodhai, PC Bachoo, the VC and her mother visited the Appellant's home. PC Bachoo approached the Appellant, identified himself and told him of the report made against him. Upon being cautioned, the Appellant replied, “ That child lying on me.” The Appellant was arrested. The VC then pointed out several areas in the house to PC Bachoo.
On November 3, 2009, PC Bachoo accompanied PC Snaggs, a police photographer, to the house. PC Snaggs took photographs of the areas which were pointed out by the VC. Later that day, the police complainant met the Appellant at the Mayaro Police Station and introduced herself to him. She informed him of the report under investigation and cautioned him. The Appellant remained silent. He was subsequently charged for the offences in question.
The Appellant did not give evidence at the trial and no witnesses were called on his behalf. The tenor of his defence was that of a denial. The prosecution led evidence that when the Appellant was confronted by the police officers with the allegations in question, he said to them, “ That child lying on me.” At the time of the trial, the Appellant was a man of good character.
The grounds of appeal 1 and 2(a) are connected and we proceed to consider them together. We shall examine ground 2(a) first as this would allow for a more orderly consideration of the issues involved.
Counsel for the Appellant, Mr. Khan, submitted that the record does not show that the VC in fact alleged that the contents of her deposition at the Magistrates' Court or her two statements to the police were untrue. He submitted that in those circumstances, there was insufficient material upon which to deem her hostile. He stated that rather, she could have properly been described as an “uncooperative” or “reluctant” witness. She did not resile from the statements given in her deposition or the statements to the police, nor did she give conflicting evidence. Although Mr. Khan accepted that his submissions on this issue were contrary to the learning in the decisions in R v Thompson 5 and R v Honeyghon and R v Sayles 6, he did not recant them.
Counsel for the Respondent, Mr. Busby, submitted that the judge has an absolute discretion to deem a witness hostile. He submitted that this is not a decision that an appellate court should
Mr. Busby submitted that the judge's decision to deem the VC hostile was proper and could not be assailed. He submitted that the VC plainly had evidence to give, but repeatedly declined to do so. He relied on the decisions in R v Thompson 7 and R v Honeyghon and R v Sayles 8 in support of this submission.
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