Roberts v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | John, J.A. |
| Judgment Date | 29 July 2008 |
| Neutral Citation | TT 2008 CA 39 |
| Docket Number | Criminal Appeal No. 19 of 2007 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 29 July 2008 |
Court of Appeal
Hamel-Smith, J.A.; John, J.A.; Weekes, J.A.
Criminal Appeal No. 19 of 2007
Mr. Hogan for the appellant.
Mrs. J. Honore-Paul for the respondent.
Criminal law - Rape — Assault occasioning actual bodily harm — Appeal against conviction Whether trial judge wrongly directed the jury on the burden and standard of proof — Mens rea — Whether trial judge wrongly placed evidential burden on the accused to call witnesses to show his innocence.
On 3rd April 2007, the appellant Marlon Roberts was convicted at the Port of Spain Assizes of two offences, namely, Sexual Intercourse with a female without her consent and Assault occasioning actual bodily harm. He was sentenced on the first count to 15 years imprisonment with hard labour and in addition to receive 10 strokes with the birch and on the second count to 2 years hard labour. The trial judge ordered that the sentences run concurrently.
The facts of this case are quite straightforward. The incident took place on 23rd August 2004 in the remote district of Sans Souci, Toco, a village on the sea in the north-eastern part of Trinidad. The virtual complainant went to the district annually in the months of June, July and August to source sea moss and usually stayed at the home of one Mr. Glen.
On the day of the incident she left Mr. Glen's home about 11:00a.m. and went to the home of one Mr. Duncan who lived near the beach where she had put her sea moss to dry. While there she felt a hand around her neck and someone placed a cutlass to her neck. A male voice then said, “don't make a sound” and pulled her towards the beach.
At the beach her assailant turned her around and she recognized him as Marlon whom she had known for the past ten (10) years on her visits to Sans Souci, although she had never spoken to him. She had last seen him on 21st August 2004, about 6:00p.m when she passed him on the road.
The virtual complainant stated in evidence that at the beach Marlon pulled off her jersey and in the process of so doing he tore it. She further alleged that he struck her across the back and hand with the flat side of a cutlass and then pulled her upon a rock and ordered her to jump into the sea. She told him that she could not swim and he told her that she would have to learn. He pushed her into the water and then he followed her.
He then made her sit down on a rock and using the cutlass, took off her bra and underwear and pulled her down to the rock. She pleaded with him to leave her but he insisted that he had come to kill her. He made her lie down on her stomach, pulled her legs apart and had sexual intercourse with her against her will. Afterwards, he threw her clothes into the water and told her that she would have to swim for them.
She jumped into the sea, retrieved her clothes and put them on. He then invited her to sit on a rock and again told her that he could not let her go and had to kill her. Once more she pleaded with him to spare her life. She said that he told her he was hungry and he had no money and she offered him $10.00. She promised him that she would not tell anyone what had taken place and that he should ask God for forgiveness. She said that he in turn asked her to forgive him. Afterwards, they both sat and talked for some time then swam back to the shore. She eventually went to Mr. Duncan's home where she got a dress.
On 25th August 2004, she reported the incident to the police and later that day was taken for a medical examination. The examination revealed multiple bruises involving the right shoulder, arms, elbow, anterior aspect of the right thigh and legs. According to the medical report the injuries were probably inflicted with the blunt side of a cutlass. The appellant was arrested on 26th August 2004.
The case for the appellant
The appellant did not give evidence. However, he called one witness Frankie Bruce, a man 80 years of age who lived at Sans Souci all his life. Bruce said that he knew the appellant since he was a young boy growing up in the district and that on 23rd August 2004 around 8:00a.m. the appellant came to his home and spent about one hour and then left telling him that he was going to his sister's home. His sister lived about one hundred yards from Bruce. Bruce further testified that the appellant returned to his home about an hour later and remained there for a period of 10-15 minutes. That would put his departure at about 10:15a.m.
Twelve grounds of appeal were filed in this matter. Grounds 1 and 2 will be considered together as they relate to one and the same complaint.
The learned trial judge wrongly directed the jury on the burden of proof when he said at page 7 lines 23-26 of the summation:
“You have to consider the evidence separately, in order to see whether the accused, on whom lies the burden of proof has satisfied you beyond reasonable doubt of the guilt of the accused man.” (Emphasis added)
The learned trial judge wrongly directed the jury on the standard of proof when he also said at page 7 lines 23-26 of the summation and page 12, line 41 respectively:
“You have to consider the evidence separately, in order to see whether the accused, on whom lies the burden of proof has satisfied you beyond reasonable doubt of the guilt of the accused man.” (Emphasis added)
“So you the jurors have to be satisfied…”
In Ramdat v the State (1991) 46 W.I.R. 201 a case emanating from Guyana, the Court of Appeal found that although the trial judge had instructed the members of the jury on the meaning of reasonable doubt which was unhelpful and may have led to error, there was no miscarriage of justice. At page 207 [a] of the judgment George C made reference to the pronouncement of Lord Goddard, C.J. in R v Kritz [1950] 1 K.B. 82, which was re-affirmed in Walters v R (1968) 13 W.I.R. 354, 355:
“It is not the particular formula that matters: it is the effect of the summing-up. If the jury are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence then whether the judge uses one form of language or another is neither here not there.”
Also at p 207 George C enunciated:
“As I have said the function of an appellate court is to examine the summing-up as a whole and objectively to determine whether what had been told to the jury leaves them with a clear understanding and appreciation that the burden is on the prosecution to prove its case to their satisfaction so that they feel sure of the guilt of the person charged (see also R v Yap Chuan Ching (1976) 63 Cr App Rep 7). And in the present case in determining the adequacy of the summing-up on this issue, this court cannot be unmindful of the number of occasions on which the trial judge had adequately instructed the jury on the approved alternative direction, viz. that they must be satisfied so that they feel sure of his guilt before they can convict the accused on either count…”
There is no doubt that the trial judge fell into error when he said that the burden of proof rested on the appellant. Archbold 2008 [4-374] states: “Where a judge misdirects a jury upon the burden of proof the mistake must be corrected in the plainest possible terms”. The issue that we must determine is whether there was a very real risk, or a probability, that the jury must have approached the case on the basis that the burden of proof rested on the appellant. In R v Moon [1969] 3 All E.R. 8030 the court pointed out that a Court of Appeal would have to consider whether the misdirection could be ‘put right although it may be difficult to do so’ and that ‘it can only be put right in the plainest possible terms.’ In this appeal we must look at the summation to see whether the appellant suffered a miscarriage of justice because of the trial judge's error. It is therefore necessary to consider if, when viewed as a whole, the jury would have been left with any uncertainty as to where the onus of proof lay. In this regard what the trial judge said at page 6, lines 32-41 is instructive:
“While it is for the Prosecution to prove the case, and there is no burden on the accused man to establish any faction in opposition, because he is, in the eyes on the law presumed to be innocent. He has nothing to prove. Our system for the administration of the criminal justice, affords him opportunity to confront his accuser, in other words, to take the witness-stand, even if it means to say, “I did not do it,” but he doesn't have to do it, and you cannot hold it against him for not leaving the sanctuary of the dock.”
In our view, the instant appeal is distinguishable from Moon. In that case the trial judge made continuous slips in the direction to the jury and moreover, when there was an attempt to correct or ‘put right’ his slips he did not do so effectively. In our view, the trial judge's misdirection in the instant case was no more than a slip of the tongue and the cumulative effect of his immediate instructions to the jury and directions on the burden of proof would not have impressed on the minds of the jury that there was any burden on the appellant.
We accordingly reject the complaint.
The learned trial judge failed to direct the jury that where there are two or more inferences of equal weight they should choose the one favouring the accused.
We have reviewed the evidence and find that there was no basis on which counsel could have advanced the submission that there were inferences of equal weight, and that the judge failed to direct the jury that if they were in doubt they should have chosen the one in favour of the appellant. Counsel for the appellant conceded that he could not properly pursue this ground.
The learned trial...
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