Court of Appeal
Criminal Appeal No. 2 of 1979
5th May, 1979.
MICHAEL HOGAN (P.)
CLIFFORD INNISS (J. A.)
P. T. GEORGES (J. A.)

Criminal Law - Rape - Appeal against Conviction - Whether learned Trial Judge had properly directed the Jury that the complaint made by the victim to her mother was corroborated - Defence of Intoxication not to be considered - Error in the admission of the medical testimony as to the lack of consent - Sentence quashed and substituted with lower Sentence.

J U D G M E N T

The Appellant in this matter was charged with the rape of Bernadine Barrow, a girl of 16. He was convicted and sentenced to 5 years imprisonment.

Bernadine lived with her mother and other members of a family quite close to the home of the Appellant. He had a refrigerator and Bernadine's mother would send her to the Appellant's house to buy ice.

The prosecution's case was that on the night of September 3, 1978, Bernadine went to the Appellant's house to buy ice taking with her a mug as a container. She knocked, the Appellant opened, she asked for .5 cents ice, and he went to the refrigerator to fetch the ice. He came back with the tray and she held a hand out to him to take the mug as she thought but he held her right hand instead, pulled her inside, kicked the door shut, lifted her off the ground and with a hand over her mouth carried her to the bed in the bedroom which was dose by and visible from the open door. He struggled with her on the bed, pulling off her pants. From time to time she managed to scream but he succeeded in penetrating her vagina with his penis. Her evidence was that while she was screaming the Appellant tore off her pants. As she screamed she "hollered" for her mother telling her that Mr. Gardiner was raping her.

A neighbour, Marie Courtenay, testified that from her bath house about 7:30 p.m., that evening, she heard a bawling from the Appellant's house. Someone was shouting "Ay Mr. Gardiner you will kill me. You will kill me". Then she heard a voice asking Mr. Heusner - neighbour and relative of the Appellant to break down the door as the Appellant would kill Bernadine.

After Bernadine had been gone for some 5 minutes her mother noting the delay sent a sister, Rose, to find out what had happened to her. Rose returned shortly after and told her mother something. The mother left for Appellant's house and when she got there she heard Bernadine calling for her mother and shouting that Appellant was raping her and would kill her. Linda Augustus, Bernadine's aunt, who had come along with Bernadine's mother knocked on the door but with no effect.

So they fetched the neighbour and relative Mr. Heusner. He too knocked with no effect and eventually he forced open the door and burst into the house where he saw the Appellant and Bernadine in the bed. Bernadine with her legs pulled up and the Appellant on top of her. He pulled him off.

Bernadine was examined by Dr. Solis. There were scratches on her neck and arms. Her vagina was reddish and there were signs of semen indicating recent sexual intercourse. The Appellant was himself examined shortly after and his penis was swollen, indicating recent intercourse. There were also signs of semen and scratches on the prepuce. The Appellant, according to the doctor, showed signs of alcoholic intoxication but was not unconscious. There was evidence that immediately after the incident he came to his door with a piece of electric wire saying that it was too short. He is an electrician by trade.

The Appellant gave evidence in defence. His story was that he had been having an affair with Bernadine, an affair which began because she made it plain that she wished to become involved. He testified that they had had sex on three occasions prior to September 3rd. On that night he had drunk a great deal and was tired. She came for ice and he was not minded to have sex but as he turned from the refrigerator where he had gone for the ice he saw her standing nude from the waist down in the bedroom, so in his words "I did what I usually would do". She asked him to hurry. Suddenly she screamed that he would make them catch her. He put his hand over her mouth to quiet her. This went on for some 15 minutes until his brother in law pulled him off her. He said he had not heard any knocking outside nor had he heard himself called. At that time he was living alone his wife having left his house in May.

In attacking the verdict, Counsel in the first instance urged that the summing?up was deficient in that the trial judge had not warned the jury that the complaint made by the prosecutrix to her mother was not corroboration. He did tell them that the law allowed it merely to prove consistency in her conduct and not to establish the truth of the facts contained in the complaint. It was argued that because the trial judge had not stated that it could not be corroboration the jury might be misled in thinking that it was.

Shortly before dealing with the complaint, the trial judge had defined corroborating properly as independent evidence connecting the accused with the crime in some material particular and had said that he would indicate some pieces of evidence which could be corroboration. He did not say that the complaint could be.

In these circumstances we see very little likelihood that a jury could be misled. There may be cases where it would be essential to make it very clear that a complaint was not corroboration. This is not one of them. The mother had gone to the scene because she was disturbed at the length of her daughter's absence, she had heard her screams from inside the house and had sought help to get inside, and the Appellant himself conceded that at one stage the prosecutrix began to struggle and shout. Against that background her complaint of rape and running out partly naked from the house seems to add little to what had already been heard and seen. We are satisfied that what the trial judge did say was adequate and that it could have led neither to error nor confusion.

The second complaint is that the doctor was permitted to give evidence which was inadmissible. As has been mentioned, Bernadine was examined shortly after the incident. There were scratches on her neck and her lips were swollen. The doctor in evidence stated?

"Because of the scratches on the girl's neck and swollen lips, I concluded the individual was forced to have sex. I say she was forced. She would be crazy to allow, herself to be scratched. That would not be normal …… I was not present but if the woman had scratches and semen one must conclude she was forced."

In our view the doctor has clearly gone too far. It is possible to say that injuries indicate the use of force which is consistent with lack of consent. But it is not permissible to say as the doctor did that the particular prosecutrix was forced. This is not an opinion which falls within the doctor's area of expertise and is indeed the very issue which the jury would be called upon to decide. In this case, for example, the defence case was that a struggle had taken place after the sexual act had begun consensually. The injuries could have been suffered then. It is not difficult to conceive of a case where parties having had consensual sex quarrell and fight. The woman in the course of the fight could suffer injuries and then claim that she had been raped.

In dealing with the doctor's evidence in the summing?up the learned judge said that the opinion should be given careful consideration because of his training and experience in his particular field, but in the end they were not obliged to accept it. Counsel argued that laymen tend to be unduly impressed by the opinion of professional persons particularly doctors and that the doctor's answers in this case could have done much damage.

Before considering the effect of this on the verdict, the 3rd ground of appeal should be discussed - the trial judge's direction that the jury should not consider the issue of intoxication as a possible defence.

There was some evidence of intoxication. Dr. Solis' opinion was that the Appellant was intoxicated by drink but not unconscious. He stated specifically that in the state of drunkenness in which he saw the Appellant he would have known what he was doing. The Appellant described himself as being "a bit tipsy". Mr. Heusner stated that the Appellant had been at his house that day and that they had drunk three bottles of Caribbean rum. There were at first two of them and later a third joined. At the trial Counsel did not raise the defence of intoxication specifically and indeed before us quite frankly conceded that he could not in the light of the defence which the Appellant had put forward - one of consent. Nonetheless, Counsel urged, the trial judge had a duty to put to the jury every defence available to an accused person on the facts led at the trial. There is much authority for this proposition which need not be reviewed. The issue is whether the evidence contained material which could justify putting this defence to the jury. We think it did not.

Clearly the defence of intoxication contradicted the principal defence advanced - that Bernadine had consented. The Appellant's own evidence of what took place that evening was a coherent account supporting his allegation of consent.

In Bonnick (1978) 66 Cr. App. R. 266, the issue was whether the trial judge was wrong in directing the jury not to consider self?defence when the defence advanced to a charge of wounding with intent was that the defendant could not have inflicted the wounds because he was not on the scene.

In the course of the judgment the Court said at p. 269?

"Common sense indeed rebels against allowing a defendant to say on his oath "I was not there and did not do it" and through his counsel "I did it but I was acting in self-defence". It might indeed be thought to confuse judgment and hinder justice if counsel were to be encouraged in the proper discharge of their duty to do their best to ensure that their clients are not improperly convicted, to raise defences so completely contrary to their instructions." …………

The Court of Criminal Appeal went on to say that it was for the trial judge to decide when there was sufficient evidence to raise an issue fit to be left to the jury. With this approach we agree. Where the issue is intoxication the evidence must be particularly cogent since it deals with the capacity of the accused to form an intent. Where an accused person himself does not put forward that defence and there is no medical evidence in support, we do not think there would be a basis strong enough to raise an issue for the jury. Accordingly we think the trial judge was right in not putting this issue to them.

In the result we are of the view that there was an error in the admission of the medical testimony as to lack of consent and that the trial judge should have directed the jury to ignore it. The other evidence in the case was however so strong that we are satisfied that no reasonable jury would have come to a different conclusion had the evidence been limited as it should have been to showing that the injuries were consistent with lack of consent. We do not think the Appellant has suffered an injustice and accordingly the appeal against conviction must be dismissed.

The Appellant was sentenced to 5 years imprisonment. He is 49 years old, a tradesman gainfully employed. Until this incident his record was clean. There was evidence that he was a good citizen active in his church and helpful. The incident was clearly out of character. Although not so drunk as not to know what he was doing, we think the Appellant was affected by his drinking spree in that the normal barriers of his self?restraint were lowered. His wife had been away since May and he proved incapable of resisting the temptation of this young girl at his door. All these are circumstances which remove this case from the average case in which the average penalty would be imposed.

In the circumstances the application for leave to appeal against sentence is granted, the sentence of 5 years imprisonment is quashed and a sentence of 3 years substituted.

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