Court of Appeal
Criminal Appeal Nos. 11 and 12 of 1983
17th November, 1983
SIR JAMES A. SMITH Ag. P.
ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

Mr. Dean Barrow, for the Appellants
Mr. Gian Ghandi, for the Respondent

Criminal Appeal against convictions of rape and forcible abduction of a female - Corroboration - Duty of trial judge in cases of rape and other sexual offences to tell the jury that they ought to look for corroboration and to warn them that in the absence of corroboration it is dangerous to act on the evidence of the complainant alone - Nature of corroboration required - The corroboration must tend to support the complainant's testimony not only as to the commission of the offence but also by implicating the accused as having committed it - Where there are several counts on indictment, the jury should be told to look for corroboration in respect of each count of the indictment and warned of the danger of acting on the uncorroborated evidence of the complainant in respect of each count - Evidence amounting to corroboration for each count must be separately classified and identified in respect of each count by trial judge in summing-up.

J U D G M E N T

On July 11, 1983 the Appellants were convicted on an indictment containing two counts, the first of which charged them with rape and the second with forcible abduction of a female. This is an appeal against those convictions.

Evidence led by the prosecution indicated that about 11:30 p.m. the complainant was standing with a male companion on a road at Roaring Creek when a car stopped near where they were standing. Two men, one of whom was the first Appellant, came out of the car. The first Appellant held the complainant and eventually forced her into the car which was being driven by the second Appellant. The car was driven off and when it eventually stopped the three men in the car (including the two Appellants) in turn had sexual intercourse with the complainant without her consent. The first Appellant made an unsworn statement. He said that he and six other men said he wanted to pick up his girlfriend. The first Appellant was driving the car and on this other man's directions he drove to a point where he stopped the car, the other man got out and then he along with the complainant entered the car. Again on this other man's directions he drove to Young Bank Road where he left the complainant and this other man, returning for them about an hour later. He denied having any "dealing" with the complainant. The second Appellant gave evidence substantially to the same effect. He also denied having anything to do with the complainant.

Six grounds of appeal were argued before us, all but one of which relate to the question of corroboration and the way in which it was dealt with by the learned trial judge in his summing up. That one ground is as follows:-

"6. The learned Trial Judge erred in law in expressly withdrawing the alternative verdict of indecent assault from the jury."

In support of this ground counsel for the Appellants submitted that it was for the jury to determine on the evidence whether indecent assault only and not rape had been committed if indeed they found that any offence had been committed in so far as the first count of the indictment was concerned. The evidence of the complainant clearly indicated that sexual intercourse had taken place without her consent. There was no other evidence to suggest otherwise. If the jury accepted the complainant's evidence there could be no possibility of a conviction for indecent assault only and in these circumstances we are of the view that the learned trial judge was correct in not leaving for the jury's consideration a possible alternative verdict of indecent assault. This ground of appeal therefore fails.

The other five grounds of appeal are as follows:-

"1. (a) The learned Trial Judge misdirected the jury in law on the question of corroboration when he told the Jury that in the instant case it would be 'useful', 'safer', 'better', to look for corroboration, but that the Jury might still convict in the absence of corroboration.

1. (b) There was an error in law in that the learned Trial Judge failed to make clear to the Jury that it was dangerous in the circumstances to convict in the absence of corroboration, and that they should bear that principle well in mind before being able to decide, as they were entitled to do, that they would nevertheless convict in the absence of corroboration, being sure that the prosecutrix was telling the truth.

2. (a) The learned Trial Judge's summing up was defective in law in that he failed to direct the Jury as to the nature of corroboration i.e. that for evidence to be capable of constituting corroboration, it must be evidence independent of the posecutrix's evidence, which affects the accused by implicating him in the crime in some material particular.

2. (b) The learned Trial Judge misdirected the Jury in law when he told the Jury that corroboration is such "evidence as is relevant in helping you to decide whether or not she (Prosecutrix) is telling the truth, and if it is material if it is on important facts, material facts, facts that make all the difference in deciding whether or not an offence had been committed, then that is the sort of corroboration that the law says you should look for and upon which you may feel safe to convict."

3. There was an error in law, in that the learned Trial Judge failed to make clear to the Jury that there was a strong desirability for corroboration on the charge of forcible abduction as well as on the charge of Rape.

4. The learned Trial Judge erred in law when he omitted to direct tile Jury that the failure of the Appellant to deny the prosecutrix's charge of rape, could not contribute corroboration.

5. The learned Trial Judge misdirected the Jury in law in telling them that the following matters were capable of constituting corroboration.

(a) the fact that the prosecutrix accused the Appellant of the offence of rape in the presence of the Police

(b) the fact that other persons, apart from the Appellant, ran away

(c) the fact that Cortez was frightened

(d) the fact that the Police found flattened bush"

In so far as the first ground is concerned the authorities clearly show that in the case of rape and other sexual offences it is the duty of a trial judge to tell the jury that they ought to look for corroboration and to warn them that in the absence of corroboration it is dangerous to act on the evidence of the complainant alone. Thus in John Joseph O'Reilly v. R. (1967) 51 C.A.R. 345 at 349 Salmon L.J. had this to say:-"It may perhaps seem strange that where evidence is called which, if accepted, indisputably must amount to corroboration it is according to the present state of law, always necessary to tell the jury how dangerous it would have been to convict if there had been no such evidence. That, however, is what was decided in Trigg (1963) 47 Cr. App. R. 94; (1963) 1 W.L.R. 305. But the rule that the jury must be warned does not mean that there has to be some legalistic ritual to be automatically recited by the judge, that some particular form of words or incantation has to be used and, if not used, the summing up is faulty and the conviction must be quashed".

No special form of words is required but this warning must be given in terms that the jury can understand. In certain passages in the summing-up the learned trial judge speaks of his "warning that it is better to look for corroboration" and that it would be "useful to look for corroboration". Nowhere, however, does he in clear terms warn the jury that it is dangerous to act on the uncorroborated evidence of the complainant. The nearest that he comes to doing so is in a passage in which he says:-

"So that is why I say that you may convict only on her evidence if you believe her but it is safer for you to look for corroboration so that you may decide from that corroboration that she is telling the truth. Ultimately your finding is based on whether or not she is telling the truth."

We do not consider that this warning was sufficiently explicit. Such warnings as he gave appears to have been by way of admonition to look for corroboration rather than as to the danger consequent upon their failing to find corroboration.

This defect in the summing up was in our view compounded by the failure of the learned trial judge to explain adequately to the jury the nature of corroboration. In one passage he says:-

"…it is for you to satisfy yourselves that her evidence has been corroborated on material particulars, that is, on things that matter in so far as the charge is concerned."

In another he says:-

"Corroboration is such evidence as is relevant in helping you decide whether or not she is telling the truth, and if it is material, if it is on important facts, material facts, facts that make all the difference in deciding whether or not an offence has been committed, then that is the sort of corroboration that the law says you should look for and upon which you may feel it is safe to convict."

In neither passage however does he indicate that corroboration must tend to support the complainant's testimony not only as to the commission of the offence but by also implicating the accused as having committed it. The Director of Public Prosecutions submits that identity was not an issue because the Appellants admitted they were present and that there was therefore no need to look for corroboration in that respect. We do not accept that submission. It is true that the Appellants admitted they were present in the car with the complainant but they denied either abducting the complainant or raping her. In these circumstances in our view the jury ought to have been told that the corroboration they should look for included corroboration of the complainant's testimony that the Appellants committed the offence.

These defects in the summing-up are in our opinion sufficiently grave to oblige us to grant the Appellants' application that their appeals be allowed. The decision in R. v. Trigg (1963) 1 A.E.R. 490 indicates that in circumstances such as these the proviso ought not to be applied. In that case Ashworth J. had this to say at p.492:-

"In principle, this court feels that cases where no warning as to corroboration is given where it should have been given, should, broadly speaking, not be made the subject of the proviso to s.4 (1) of the Criminal Appeal Act, 1907. There are cases where the evidence has been such that this court had felt it possible to apply the proviso, but those cases, in the view of this court, must be regarded more as exceptional than as in any sense a regular matter."

Having considered all the circumstances including the gravity of the offences, the time and expense involved in a new trial, the ordeal suffered by the complainant on the one hand and the accused in a trial of this nature, and the strength of the prosecution's case, we are of the view that the appeal ought to be allowed and a new trial ordered.

Before parting with the appeal however we consider that we ought to express our views in relation to questions which arise in two of the other grounds of appeal which we have not found it otherwise necessary to deal with. In our view the jury ought to be told to look for corroboration in respect of each count of the indictment and warned of the danger of acting on the uncorroborated evidence of the complainant in respect of each count. Since the counts must be considered separately, it is particularly important that such evidence as may amount to corroboration be separately classified and identified in respect of each count by the trial judge in his summing-up. We do not, however, consider that there is any obligation on a trial judge to direct a jury that any particular evidence cannot constitute corroboration.

For the reasons we have given we allow the appeal, set aside the convictions and sentences, and order a new trial.

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