The State v Rambaran
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 12 October 2010 |
| Neutral Citation | TT 2010 HC 260 |
| Docket Number | HCA 58 of 2008 |
| Court | High Court (Trinidad and Tobago) |
| Date | 12 October 2010 |
High Court
Mohammed, J.
HCA 58 of 2008
Mr. M. Chatoor for the defendant.
Ms. M. Joseph for the State.
Evidence - Sexual offences — Sexual intercourse with a minor under the age of 14 — Defendant was charged with having sexual intercourse with a female of age 10 — State sought to introduce evidence of the defendant having another sexual relationship with female when she was under the age 14 — Evidence had established the propensity of the defendant to have sexual intercourse with minors — State was to choose one or two incidents from the evidence sought so it did not overwhelm and prevent the defendant from having a fair trial — Evidence which showed the defendant's propensity to be violent was also to be so adduced — Evidence of previous convictions against the defendant were disallowed as they may have overwhelmed and adversely affected the fair trial of the defendant.
The defendant is on trial on a Two Count Indictment, for the offences of Sexual Intercourse with a Female under the Age of Fourteen and for Common Assault. The State's evidence is as follows:
S.S.'s date of birth, as evidenced by a Birth Certificate tendered through the Police Complainant, is 18th of August 1992, and around Easter of 2003 she was then about ten and lived at Mayo together with her mother Geeta, her stepfather the defendant, the defendant's father Sagan, and her two sisters and brother. She attended at the time, the Mayo R.C. School.
The State's case is that the defendant's father lived downstairs. Upstairs consisted of one room and the defendant and S.S. slept on a mattress which on the day in question, was in front of an extended bed where S.S.'s mother, sisters and brother slept. At that time, according to the evidence of S.S., she was smaller in stature and the defendant bigger and more strapped than he is at present.
According to the State's case, on a night around Easter of 2003, between the 28th of March and the 20th of April 2003, the defendant woke S.S. up and told her not to make any noise. He then started to touch her vagina and she pushed him away. He then pulled down her underwear and the defendant kept on touching her vagina. She started to ‘kick up’ and he then placed his foot on top of her foot so that she would stop. The defendant, according to the evidence of S.S., then placed his penis in her vagina and started to move up and down. Her evidence was that she experienced pain and she started to make some noises, but not loudly. She said that she was not really screaming, but rather groaning in pain. The defendant then cuffed her, according to her evidence, on her right hip. The defendant held down her legs when he was having sexual intercourse with her, and it was not possible for her to ‘knee’ him. About two to three minutes after, the defendant came off from on top of her and he then went to sleep as normal. The defendant's penis was in her vagina, on S.S.'s estimation, for about two to three minutes.
The following morning when she went to the bathroom after she got up, S.S.'s evidence was that she saw blood on her underwear and she washed her underwear and changed it. Her evidence was that she did not tell anybody about what had happened because the defendant had threatened her, telling her, that if she told anybody he would beat her up and kill her. S.S. in her evidence denied maliciously and spitefully making up false allegations against the defendant, because he had spoken to her about coming from school late and about boyfriends.
On the 27th of October 2003, that is later on that year, Ms. Florencia Dass and S.S. went to the Gasparillo Police Station. The mother of S.S. was called and a written statement later recorded from S.S.. On the 3151 of October 2003 at around half past three in the morning, Police Constable Teeluck arrested the defendant at his home in Mayo. The defendant was told of the allegation, cautioned, and according to the evidence of P.C. Teeluck, he said, “Officer, I done tell meh wife sorry for that “. The defendant was then arrested by P.C. Teeluck and taken to the Gasparillo Police Station. That is the general outline of the State's Case in this matter.
The defence of the defendant is one of a Denial and flowing from this, that S.S., under the influence of her mother, who was motivated by a desire to commence a relationship with Ian Farrow, and thus move on from a relationship with the defendant, maliciously and spitefully made up false allegations against the defendant, partly because of her own reasons, namely that the defendant had spoken to her about coming home from school late and about boyfriends.
Under the propensity gateway of the Amended Evidence Act, Section 15N(1)(d) and the related Section 15P, the State seeks to introduce the evidence of N.R..
The defendant has been charged with the offence of Sexual Intercourse with N.R., a female under the age of fourteen. N.R. has given evidence in the Magistrate's Court in August of 2010. The charge is therefore pending against the defendant. The gist of N.R.'s proposed evidence, as may be gleaned from her deposition in August of 2010 is that when she was twelve years old, and then in Standard Five at a primary school, she met the defendant. She misleadingly told him in initial conversation that she was eighteen years old. Fairly shortly after that, the defendant had sexual intercourse with N.R.. Before the first occasion of sexual intercourse with the defendant, N.R. says that the defendant enquired about her age and she told him that she was twelve years old.
Sometime after, N.R. left her father's home and went to stay at the defendant's home at Mayo for a week, during the course of which the defendant had sexual intercourse with her. After that week the police came for her at the defendant's home in Mayo and took both her and the defendant to the Freeport Police Station, where at some stage there, the defendant told N.R. not to tell the police anything that happened between them. At the Freeport Police Station, in her presence, N.R. says in her deposition that she heard a police officer tell the defendant that she was underage. N.R. after that, returned to live at her home with her father. During this time, the defendant called her on the phone and sometimes threatened her, and consequently, she met him sometime afterward and went to live with him at Mayo. She had sexual intercourse with the defendant regularly during this period, on average about ten times a week. N.R. bore a child whose father was the defendant. She was fourteen years old when that child was born. The defendant was registered as the child's father.
Subsequently N.R. bore another child for the defendant. At a Health Centre visit very shortly before the birth of the second child, a nurse at the Health Centre spoke to her and sent her to the police station where her father and sister later came and took her home. The police then became more actively involved, culminating in the laying of charges against the defendant in respect of N.R..
From the State's initial skeleton arguments filed by State Attorney formerly engaged in the matter, it appears that there were apparently two charges preferred against the defendant for the offence of Sexual Intercourse with a Minor, with respect to N.R..
In her deposition evidence, N.R. says that, during the time she lived with the defendant she tried to leave his home, but did not do so because the defendant would threaten her and on many occasions the defendant beat her.
The defendant's challenge to N.R.'s evidence, based both on what has been indicated to the court during the course of oral argument and from what appears under cross-examination by an attorney formerly engaged in the matter at the Magistrate's Court, is that the defendant honestly and genuinely believed that she was over the age of fourteen based on what she had told him. The defendant denies that N.R. told him before the first occasion of sexual intercourse, or at any other time, that she was twelve years old. The defendant also alleges that based on the physical appearance of N.R., he held the honest belief that she was over fourteen years old because she appeared to be physically mature for her age. The defendant also alleges that he was motivated in taking N.R. to live with him, by her telling him that her father had gotten her pregnant and was trying to procure an abortion and that she also told him that she was bleeding heavily before she left her father's home, and had protested to him that she could not take it anymore and wanted to leave her father's home.
The State seeks to rely on this evidence of N.R., in order to establish that the defendant has a Propensity to have sexual intercourse with underage girls relative to the First Count on the Indictment, and also has a Propensity to use violence relevant to the Second Count on the Indictment which charges the defendant with Common Assault.
I turn now to the law in this area. Section 15N(1) of the Evidence Amendment Act, No. 16 of 2009, which was assented to on the 11th of January of 2010 says, insofar as it is relevant to this application:
“(1) In criminal proceedings, evidence of the accused's bad character is admissible where…
……
(d) it is relevant to an important matter in issue between the accused and the prosecution.”
Section 15N(3) says:
“(3) The Court shall not admit evidence under subsection (1), if on an application by the accused to exclude it, it appears to the Court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it.”
Subsection (4) of Section 15N says that:
“(4) On an application to exclude evidence under subsection (3), the Court shall have regard, in particular,...
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