Court of Appeal
Criminal Appeals Nos. 2 and 3 of 1989
6th November, 1989
KENNETH ST. L. HENRY, P.
SIR JOSEPH A. LUCKHOO, J.A.
SIR DENNIS E.G. MALONE, J.A.

Appellant Rivas in person.
Mr. Dean Barrow for the Appellant Wiltshire.
Mr. F. Lumor Ag. D.P.P. for the Respondent.

Criminal Law - Criminal Evidence - Forceable Abduction - Rape - Distinction between Abduction Simpliciter and Forceable Abduction - Forceable Abduction is an offence of a sexual nature - Need for corroboration warning to be given - What constitute corroboration in a Rape case - Whether an accused should be given a warning with respect to bringing his character into issue, if he has not impugned the character of the prosecution witness by his cross-examination - What constitute a lie by an accused - Whether the mere presence of an accused at the scene of a rape with guns is sufficient to render him guilty of rape.

J U D G M E N T

The Appellants were convicted on the 24th day of April, 1989 of the offences of rape and forcible abduction. The Appellant Wiltshire, was sentenced to 9 years imprisonment on the count of rape to run concurrently with 8 years on the count of forcible abduction whilst the Appellant Rivas was sentenced to 8 years imprisonment on the first count to run concurrently with 7 years on the second count. At their trial the Appellants were not represented by Counsel, They elected to remain silent at the close of the prosecution's case and called no witnesses. They relied on cross examination to elicit evidence that might be favourable to their cause but their suggestions challenging the essential features of the prosecution's case were rejected by the witnesses for the prosecution. In the result the facts for the consideration of the jury constituted the case of the prosecution.

On the 1st day of October, 1988 when the offences charged were allegedly committed, the Appellant Wiltshire, was a member of the police force working with the defence force. The Appellant Rivas, was a member of the defence force and so also was one Lambey. The three men, armed with guns, were engaged in an anti-drug exercise. Specifically to search for marijuana under cultivation in the Cayo District. That morning the men came to the home of the complainant at Mile 48. The complainant was alone. She was asked to produce immigration papers and was told that the men were searching the area for aliens. In fact they had been given no instructions to search for aliens. The complainant was at the time a recent immigrant from San Salvador. She produced some papers but was told that the papers were not in order and that she would he taken to Dangriga. At that point the complainant's common law husband, Eleximo Figueroa, who is also from San Salvador, arrived. He was told that the complainant's papers were not in order and that the complainant would be taken to Dangriga. She was lifted up and, against her will, was put in the back of the lorry in which the three men were travelling. The Appellant, Wiltshire, sat in the back of the lorry with her and Figueroa asked to be allowed to accompany her but his request was refused. He was told that a bus for Dangriga would pass, by Mile 48 in about half an hour's time and he could travel by it. The three men then drove off with the complainant.

The complainant was not driven towards Dangriga but towards Cave's Branch which lies in the opposite direction. She was taken, she said, to a hut in a side track about 5 miles from her home. She then described how each of the men in turn, beginning with the Appellant Wiltshire raped her after assaulting her. In the course of the acts of sexual abuse she recalled that a gun of one of the men fell to the ground and a round was accidentally discharged without causing harm to anyone. She was driven back towards her home.

Figueroa, meanwhile, had attempted to follow the lorry in which the complainant had been taken by the men. He had borrowed a bicycle from a friend and cycled towards Cave's Branch as he suspected that the lorry had been driven in the direction of Cave's Branch and not of Dangriga. Approaching Cave's Branch he saw the lorry with the complainant coming from the Cave's Branch direction and he noted that the complainant was crying. He followed the lorry but lost sight of it. Shortly after whilst cycling towards his home, the lorry passed him on its way back to Cave's Branch.

On arrival at his home, Figueroa met the complainant. She reported what had happened to her. According to Figueroa she alleged that she had been raped only by the Appellant Rivas. He did so whilst Lambey and the Appellant Wiltshire held her to the ground by her hands. The complainant denied that her complaint to Figueroa was of that description. She insisted that she had been raped by each of the men in turn and suggested that Figueroa had misrepresented her because he was so angry at the time that he had not listened attentively to her.

The 1st October, 1988, was a Saturday. No report of the incident was made to the police until the Monday by which time the complainant had had sexual intercourse with Figueroa after the incident. The reason given for that delay was that although Figueroa did go to Belmopan on the Saturday he did not contact the police as the complainant's name was not on the immigration papers he possessed and on the Sunday he and the complainant stayed at home. On the Monday Figueroa reported to the police at Belmopan. The complainant was then interviewed at her home by the police and she directed them to the house where she claimed to have been raped. She was taken to Belmopan and was examined by a doctor who found no signs of violence on her chest, dorsum or genitals. It was, the doctor's opinion, however, that a minor blow might not be apparent after three days.

A voluntary written statement was recorded from the Appellant Rivas, on the 6th October, 1988. In that statement the Appellant admitted to having had sexual intercourse with the complainant but declared that it was with her consent. No written statement was supplied by the Appellant Wiltshire but on the 3rd October, 1988 he is reported by Sergeant White to have said that he knew nothing when asked by Sergeant White if he knew what happened at Cave's Branch.

An identification parade at which Lambey and the Appellant Rivas, were the suspects was held on the 6th October, 1988. The Witnesses were the complainant and Figueroa. According to P.C. Castellanos who was present at the parade, as an interpreter, and to Cpl. Sobal who conducted the parade, both witnesses identified Lambey and the Appellant Rivas. No identification parade was held at which the Appellant Wiltshire, was a suspect. Doubtless it was considered unnecessary to hold one as it was reported to Sergeant White by W.P.C. Willis in the presence of the Appellant Wiltshire, that the complainant had pointed out Wiltshire as one of the rapists when she was with W.P.C. Willis at the police station. Further it is apparent from the questions put by the Appellant Wiltshire in cross examination that he acknowledged he was present at all times during the incident.

Grounds one and two of the notice of appeal filed on behalf of the Appellant Wiltshire relate to the offence of forcible abduction. Those grounds were adopted with the arguments presented by Mr. Barrow as grounds of appeal by the, Appellant Rivas.

On ground one, Mr. Barrow's argument was that the Criminal Code Chapter 84 ("the Code") recognises two separate and distinct offences of abduction. One, which he described as abduction simpliciter, being the offence recognised by section 54 of the Code and the other which he described as forcible abduction being the offence recognised by section 55. The learned trial judge, Mr. Barrow submitted, misdirected the Jury by referring to sections 73 and 74 of the Code which, he contended, apply to abduction simpliciter and not to forcible abduction the offence with which the appellants were charged. Further, Mr. Barrow submitted, by directing the Jury as to the effect of the provisions mistakenly cited as applicable to the offence of forcible abduction the learned trial judge compounded the misdirection. The passage in the summing up to which Mr. Barrow objected as compounding the misdirection is at p. 69 of the transcript and is as follows:

"I read to you:

'It is not necessary that the taking or detaining should be without the consent of the person taken or detained and it suffices if the person be persuaded, aided or encouraged to depart ...................................................

So although it says

'forcible abduction' there is no need for physical force. You don't have to put a gun behind her back for this crime of abduction because the section says persuading, aiding or encouraging her to depart against the wishes of the person who has control over her. She doesn't have to be carried."

It is not in question that abduction simpliciter and forcible abduction are separate and distinct offences and we have no hesitation in rejecting Mr. Lumor's submissions that sections 73 and 74 of the Code apply to both abduction simpliciter and to forcible abduction as several reasons can, in our view, be advanced in support of their rejection. It suffices to mention but two:

1. Section 55 which creates the offence of forcible abduction specifies as an element of the offence that the taking or detaining of the female must be against her will whereas section 74 (1) (2) states that it is not necessary that the taking or detaining should be without the consent of the person taken or detained. Consequently the sections are in conflict.

2. Section 73 defines "abduction" and section 54 provides a penalty for the offence of abduction so that section 73 clearly applies to section 54. On the other hand the word "abduction" only appears in the marginal note to section 55 and not in the body of the section. So that section 73 does not define anything that is in the body of section 55 and consequently is not related to section 55.

As in our view sections 73 and 74 do not apply to section 55 it was a misdirection on the part of the trial judge to direct the jury on sections 73 and 74 and to direct the Jury in the terms reported at p.69 of the transcript. To determine the effect of those misdirections on the verdict of the Jury, would require a close examination of the evidence that was before the Jury. As it is not, however, desirable to make such an examination in view of our ultimate decision on this case and as that decision makes such an examination unnecessary we turn to consider the second ground of appeal.

Ground two of the grounds of appeal is as follows:

"The learned Chief Justice erred in law when he omitted to warn the jury of the danger of convicting the Appellant of the charge of forcible abduction, on the uncorroborated testimony of the prosecutrix/complainant. In the circumstances, the Appellant's conviction on the charge of forcible abduction is unsafe and unsatisfactory."

The learned trial judge's directions on forcible abduction commence at p. 68 of the transcript and conclude at p.72. Neither there nor elsewhere in the summing-up does it appear that the jury were warned of the danger of convicting the accused of that offence on the uncorroborated evidence of the complainant. Further as at p. 68 of the transcript the trial judge properly directed the Jury that:

"forcible abduction …………………..………… is a crime completely
different and separate from rape"

it is not to he supposed that his directions on corroboration in respect of the crime of rape applied to the crime of forcible abduction.

In our view forcible abduction is an offence of a sexual nature. We think that to be apparent from the language of section 55 which is as follows:

"Every person who takes away or detains against her will a female of any age with intent to marry or carnally know her, or to use her to be married or carnally known by any other person, shall be liable to imprisonment for fourteen years."

And we have been pleased to find that this Court expressed the same opinion in Harry Williams and Alfonso Gilharry v The Queen (Criminal Appeals Nos. 10 and 11 of 1976). As it is well established that in all cases of a sexual nature the warning must be given and it was not, the convictions against the Appellants on the count of forcible abduction cannot be allowed to stand.

The third ground of appeal argued on behalf of the Appellant Wiltshire, was that the learned Chief Justice erred in law when he ruled, at page 22 of the transcript, that that Appellant would put his character in issue in consequence of his line of cross-examination of the witness Eleximo Figueroa. In the alternative the learned Chief Justice erred in law by ruling at page 22 of the transcript that the Appellant had attacked the character of the witness Eleximo Figueroa. In the circumstances, the Appellant was denied the opportunity of further cross-examination of the witness and was materially prejudiced.

It transpired that, in the course of the appellant Wiltshire's cross-examination of the witness Eleximo Figueroa, Mr. Lumor, who conducted the prosecution, asked the trial judge to have the jury retire as he wished to address the Court. The trial judge acceded to Mr. Lumor's request and the jury duly retired. What occurred thereafter was recorded by the trial Judge as follows:

"Lumor: A1 (Wiltshire) is not represented and he is attacking Prosecution witness character. I just ask you please to explain to A 1 the legal position.

Court explains to Al that if he attacks the character of prosecution witnesses the Prosecutor may be allowed to bring evidence to show that he himself is of bad character.

Al: In this case I shall ask no further questions."

Thereafter the Jury returned and the appellant Wiltshire did not proceed to further cross-examine Eleximo Figueroa.

As it appears from the record of appeal there was nothing in the questions asked by the Appellant Wiltshire of Eleximo Figueroa that would have warranted any warning by the trial judge. So far as the record goes it could not be said that the Appellant Wiltshire was casting imputations on the character of the witness. Further, as Mr. Barrow correctly pointed out, a warning in the terms given by the trial judge would only be warranted if the appellant was seeking to put his own character in issue which was not the case here. It was in consequence of this incorrect warning given by trial judge that the Appellant said that he would ask no further questions. Mr. Lumor has informed us that he made his request to the judge to explain to the Appellant the legal position not because of the questions put by the Appellant to the witness Eleximo Figueroa but rather because whenever the Witness responded to a question the Appellant made observations in the presence of the jury which he (Mr. Lumor) regarded as attacks on the character of the prosecution witnesses. However that may be, it was in consequence of the incorrect warning given by the trial judge that the Appellant made his decision not to further cross-examine the witness. In these circumstances, the Appellant Wiltshire was deprived of the opportunity of eliciting material which might have been available to him in his defence. That being so the convictions against the Appellant Wiltshire cannot be allowed to stand.

It was next urged by Mr. Barrow that the learned Chief Justice erred in law in failing to direct the Jury that on a charge of rape the corroborative evidence must confirm in some material particular that intercourse has taken place, that, it has taken Place without the complainant's consent, and that the Appellant was the man who committed the crime. Mr. Barrow urged that, in the circumstances, the Appellant Wiltshire's conviction for rape was unsafe and unsatisfactory. Mr. Barrow's argument on this ground was adopted by the Appellant Rivas.

The learned trial judge gave the following direction:

"Corroboration means independent evidence, that is, evidence which. does not come from the complainant, in this case Victorina, which confirms or supports in some material particular not only the evidence that a crime has been committed but also evidence that the accused committed the crime. This applies both to P.C. Wiltshire and to Private Rivas."

The learned trial judge had, shortly before giving this direction, explained to the Jury what are the ingredients of the crime of rape and the evidence required to prove it. In these circumstances we are satisfied that the learned trial judge did adequately define corroboration for the Jury. It is interesting to note that a direction in similar terms was approved by the Court of Appeal of Trinidad and Tobago in Ramlogan and Boodram v. R. (1972) 20 W.I.R. 487.

The fifth ground of appeal argued by Mr. Barrow relates to the learned trial judge's characterization of three matters as "lies" and his directions to, the jury that they could treat such matters as capable of constituting corroboration in the case of the Appellant Wiltshire. In respect of what the learned trial judge referred to as "Lie No. 1" he said:

"When P.C. Wiltshire and Private Rivas and the third soldier went to Victorina's and Eleximo's house on Saturday they told her husband that they were checking on the papers of aliens; that was a lie because they were not instructed to go on an errand in connection with aliens. This lie was proved by Sgt. Alvarez, a third person, the, commander of the patrol who said he gave no such instructions; on the contrary he told them to confine the operation to finding higher ground to improve the communications to Price Barracks. And this lie is confirmed by another person apart from the complainant, by Eleximo himself when he arrived and found them in the house."

In our view it does not follow that because Sgt. Alvarez did not instruct the Appellants to check on the papers of aliens, that it was a lie when they told Eleximo they were checking on the papers of aliens. In fact, Eleximo testified that they did check his papers. Further, it was Lambey who, speaking in Spanish, told Eleximo that Wiltshire had instructions to arrest anyone without documents. It was not disputed that Wiltshire did not speak Spanish. We are of the opinion that the learned trial judge erred in regarding the matter in question as Lie No. I Lie No. 2 was ascribed by the learned trial judge to Wiltshire, Rivas and Lambey in their telling Eleximo that they were taking his wife in connection with her residence status to Dangriga whereas they did not go nor intend to go to Dangriga. Although Eleximo said that "they told me they were taking my wife to Dangriga" obviously he meant that it was Lambey (the Spanish speaking officer) had told him so. Lie No. 2 could not therefore be fairly ascribed to either Wiltshire or Rivas. We therefore are of the view that the learned trial judge erred in ascribing Lie No. 2 to either Wiltshire or Rivas.

In view of the conclusion we have reached in respect of "Lie No. 1" and "Lie No. 2", it is not necessary to deal with what the trial judge referred to as "Lie No. 3". Suffice it to say that having so misdirected the Jury on this vital part of the case, the convictions of the Appellants cannot be allowed to stand.

Lastly it was urged that the learned trial judge misdirected the jury as to the law when he told the jury, at page 67 of the Record of Appeal, that because the Appellant was armed, his mere presence at the scene of a rape by another person, was sufficient to convict the Appellant Wiltshire of rape. The trial judge's direction which is in question came after he had referred to the danger of convicting on the uncorroborated testimony of the complainant:

"You are entitled to take all the circumstances into consideration, but if you bear in mind this danger which I explained to you, you may convict them both of rape if you are convinced the complainant Victorina is telling the truth, the truth being either whether one raped her or three raped her, because three were there and they all carried arms."

We find considerable difficulty in understanding what the learned trial judge meant to convey by the words "the truth being either whether one raped her or three raped her". The testimony of the complainant was that all three raped her. True it is that Eleximo said that she has complained to him that one raped her while the other two men held her. But as the learned trial judge himself appreciated and he so earlier in his summing up told the Jury, this evidence was admitted only for the purpose of testing the consistency of the complainant's story and not as evidence of the truth of the matter stated. There was no evidence in our view that would warrant the giving of such a direction to the Jury. Thereafter follow the words "because three were there and they all carried arms". If the learned trial judge meant by those words that the mere presence of the men and the fact that they had guns was sufficient to render them guilty of rape that would be quite wrong. If he did not mean to convey that impression this portion of the direction he gave was insufficient to alert the Jury to what he did in fact mean. In either case we are not satisfied that the Jury understood the true legal position. This would be a ground for quashing the conviction of the Appellants Wiltshire on the charge of rape.

In view of these conclusions it is not necessary for us to deal with the question of sentence.

In the result the appeals of both Appellants are allowed. The convictions of the appeals of both counts are quashed and the sentences set aside. The interests as of justice require that there be a retrial of the Appellants on both counts and we so order.

-------------OO-------------