Sifontis v The State
| Jurisdiction | Trinidad & Tobago |
| Judge | De La Bastide, C.J. |
| Judgment Date | 21 June 2002 |
| Neutral Citation | TT 2002 CA 55 |
| Docket Number | Civil Appeal No. 39 of 2000 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 21 June 2002 |
Court of Appeal
de la Bastide, C.J.; Permanand, J.A.; Kangaloo, J.A.
Civil Appeal No. 39 of 2000
Mrs. P. Elder for appellant.
Ms. Browne-Antoine for respondent.
Criminal law - Sexual offences — Directions to the jury — Whether a miscarriage of justice had occurred owing to the failure of the trial judge to direct the jury that the presence or absence of reasonable grounds for the person's belief that another was consenting to sexual intercourse, was to be taken in to consideration, as required under section 28 of the Sexual Offences Act, 1986 — Finding that the judge ought to have directed the jury in accordance with section 28 as well as referred them to evidence which might have constituted reasonable grounds for such a belief — Appeal allowed — Conviction quashed.
Evidence - Corroboration — Whether a miscarriage of justice had occurred owing to the failure of the trial judge to give the jury a warning about acting on the uncorroborated evidence of the virtual complaint — Finding that section 11 of the Administration of Justice (Miscellaneous Provisions) Act, 1996 removes the obligation on the trial judge to give the corroboration warning in every case — Notwithstanding, having regard to the friendliness of the complainant with the appellant after the alleged rape and the absence of any vaginal injury, the judge ought to have pointed out the absence of corroboration to the jury.
The appellant was convicted of rape of N.R. The incident is alleged to have occurred on Saturday 22nd October 1994 when N.R. was almost seventeen years old, her birthday being in November. N.R. was at the time a mildly retarded adolescent whose intelligence was that of a seven year-old child. The appellant was charged with rape and not, as he might have been, with having sexual intercourse with a person who is mentally subnormal pursuant to 5.12 of the Sexual Offences Act, 1986. N.R. at the time of the incident was an inmate at the St. Dominic's Children's Home, having been an inmate there from the age of nine. The appellant is a police officer and apparently had been instrumental in securing for N.R. a place at the Children's Home.
The prosecution's case was that the appellant telephoned the home of one Mrs. Babb where N.R. was spending the weekend and arranged to take N.R. to the zoo on Saturday, the 22nd October 1994. He collected N.R. from Mrs. Babb's home in his car and drove in a direction away from the zoo, at which point N.R. felt uncomfortable. The appellant then drove to an ATM machine and then a shop to buy pastries, leaving N.R. alone in the car for about 10 minutes. The appellant then drove to a house which was unfinished, and when N.R. asked whose house it was, she was told that was not for her to know. The appellant parked his car under the house and locked the gate. He and N.R. went to a room in the house where he removed her clothes and told her to lie on the bed which she did, lying on her back. The appellant then removed his clothes and put on a condom. He then had sexual intercourse with N.R. during which she did not resist. N.R. told him she was in pain and he told her it would pass. Eventually the appellant got up removed the wet condom and they each had a shower and dressed.
The appellant then took N.R. to the home of one Marlene with whom he was having a relationship. The appellant and Marlene took N.R. to a store on Charlotte Street where they purchased some items of clothing for N.R. They then returned N.R. to Mrs. Babb's home where she tried on the clothes and appeared to be quite happy. On Monday the 24th October, at the Children's Home, Aileen Bruce observed something about N.R. which caused Aileen to speak to her. As a result a report was made to the police and N.R. was examined by a doctor on Wednesday 26th October. A vaginal swab was taken from N.R. which revealed that no spermatozoa was present. The doctor found that her hymen was not intact and that it was not recently removed. N.R. was seen and examined by Dr. Jacqueline Sharpe, a consultant psychiatrist, on the 31st October 1994 and on a regular basis thereafter. She was found to be a verbal (i.e. able to understand a conversation and responds appropriately) mildly retarded adolescent. The doctor found her intelligence level was around 7-9 years, her reading ability was at the 9 1/2 year level and her reading comprehension was at the 6 1/2 year level. The doctor found her interpersonal skills to be dependent but N.R. was good at forming relationships and tended to rely on people she respected to guide her. Her I.Q. was 66 and the doctor testified that anything below 70 was considered retarded.
The case for the defence was that the appellant had sexual intercourse with N.R. on the day in question but that it was at the instigation, invitation and encouragement of N.R. The appellant testified that on the day of the incident N.R. telephoned him and asked him to call back at Mrs. Babb's home which he did. He spoke to Mrs. Babb about taking N.R. shopping as her birthday was imminent. He collected N.R. in his car and on getting in she reclined the front seat to a very low position. N.R. then proposed that he have sex with her and after she assured him that she was serious about this, he went to a pharmacy and purchased a condom and showed it to N.R. who began to caress his legs, chest and private parts in the car as they were driving. He drove to a house which he and N.R. entered and he went to check on the doors to the house. When he went to the bedroom he found N.R. had removed her clothes. He spoke to her about the condom and she assured him she knew of those things. He then had sexual intercourse with her. They had a shower and then went to Marlene's home. They went shopping for N.R. and returned her to Mrs. Babb's home where she ‘modelled’ the clothes they had bought for her. N.R. hugged and kissed both the appellant and Marlene as they were leaving.
The critical issue for the jury therefore was whether N.R. consented to sexual intercourse with the appellant. Another issue which might have arisen on the evidence was whether N.R. was capable of consenting to having sex.
The appellant filed thirteen grounds of appeal all of which need not be discussed at length as some were plainly without merit. Into this category fell grounds 10, 11 and 12. Ground 10 complained of the failure of the judge to give the jury adequate directions on the good character of the appellant. But the judge did give the jury a direction which we consider adequate, on the relevance of the good character of the appellant. The judge directed the jury that his good character was relevant to the appellant's credibility and also to his propensity to commit the offence with which he was charged. Nevertheless, the judge's turn of phrase was unfortunate when at the end of the direction he said: “… because I imagine to serve a period of time, to be commended must be to his credit somewhere along the line.” This might have tended to blunt somewhat the effect of the direction. We do not feel however that this was a serious enough lapse on the judge's part to warrant interference with the conviction.
Ground 11 can be disposed of with similar ease. This ground complains of the lack of direction on an inconsistency in the evidence of the appellant. In cross-examination the appellant said that he had not been told on a previous occasion that N.R. was vulnerable and childlike. He was confronted apparently with what he had said in the Magistrate's Court and he recanted. In the first place, this is merely an inconsistency in his evidence and has not been demonstrated to be a lie. It could have been attributed to a lapse of memory or a mistake and further the circumstances identified in R v. Lucas [1981] 1 Q.B. 720 as those in which a direction to the jury about the effect of a lie is required, did not exist in this case.
Ground 12 is the usual residual ground which complains that the verdict is unreasonable and cannot be supported having regard to the evidence. But there was evidence given by N.R. that she did not consent to the act of sexual intercourse, and it was not in dispute that intercourse did take place. Accordingly, this ground was not viable.
Grounds 4 and 5 can be taken together. They are as follows:
A miscarriage of justice occurred by the failure of the trial judge to give the jury a warning about acting on the uncorroborated evidence of the Virtual Complainant. At common law, there is an obligation to give such a warning. Section 11 of the Administration of Justice (Miscellaneous Provisions) Act No. 28 of 1996 sought to remove this obligation. However, this Act was not passed by the required constitutional majority and is thus unconstitutional. Accordingly the common law rule remains intact and its non-observance by the learned trial judge amounted to a denial of the appellant's constitutional right to a fair trial.
On the basis that section 11 of the Administration of Justice Act is constitutional then the failure of the trial judge to give a warning to the jury to exercise caution before convicting on the uncorroborated evidence of the virtual complainant rendered the appellant's conviction unsafe and unsatisfactory. In light of the evidence given at the trial the trial judge erred in the exercise of his discretion.”
The flaw in the argument that section 11 of the Administration of Justice (Miscellaneous Provisions) Act, 1996, is unconstitutional is that it does not recognise that the effect of that section is to remove the obligation to give the warning in every case but not in those cases where fairness requires it to be given. If the judge fails to give the warning in a case in which he should give it, the accused has the right,...
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