Court of Appeal
Criminal Appeal No. 11 of 1985
20th November, 1985
SIR JAMES A. SMITH P.
SIR ALBERT L. STAINE J.A.
KENNETH C. HENRY J.A.

Appeal against conviction and application for leave to appeal against sentences imposed for attempted rape and grievous harm - Judge misdirected jury as to weight of evidence of a Crown witness material to the defence - Jury should have been directed to inferences favourable to accused which could have been drawn from Prosecution's evidence - Appeal allowed - Conviction quashed - Sentences set aside -New trial ordered.

J U D G M E N T

The Appellant was convicted on two counts of an indictment which charged him respectively with the attempted rape of one Viola Small and causing grievous harm to her. In so far as the second count is concerned the conviction was for causing harm. The appellant was sentenced to 7 years imprisonment on the first count and 1 year imprisonment on the second. He appealed against his conviction and sought leave to appeal against the sentences imposed.

The convictions arose out of an incident which occurred on 5th August, l985. On that day at about 1 pm. according to Viola Small she was alone in the upstairs of the only building at the trailer park. She had gone to visit one William Gibson the manager of the trailer park who was in love with her and for whom she did domestic work. The appellant came upstairs and asked for a drink of water. She did not know him before and she told him there was no water. She then walked to a trailer, opened the door and as she did so she felt a blow on the back of the neck. She fell and as she got up she received a kick in her back and fell again. A heavy weight fell on her and she heard a male voice demanding money and her keys. She agreed to hand over the keys and she was picked up by the back of her blouse. She turned around and recognized the appellant. The appellant demanded that she remove her clothes. When she did not he kicked her in the stomach and tore off the zip of her pants. Because of the pain she was suffering she took off her pants but did not take off her panty. Thereupon the appellant grabbed her panty and pulled it down to her knees. She struggled with him and eventually Mr. Gibson arrived outside the trailer and knocked at the door. The appellant then apparently became nervous and she managed to escape, wrapping a sheet around her as she ran from the trailer.

Mr. Gibson was one of the prosecution witnesses. His evidence is that when he arrived at the trailer park he heard a conversation. He knocked and heard Viola Small say, "Wait a minute; don't stay here, this is not my house". A second or two later she opened the door and ran out with a sheet wrapped around her screaming, "Help, rape, murder". By then, he said, she had seen him. The appellant came out saying, "That woman is crazy as hell". When Mr. Gibson engaged him in conversation the appellant then went on to say that he had met Viola Small some 2 weeks earlier and she had invited him to her house.

The appellant gave evidence on oath. In evidence he stated that he met Viola Small some 2 weeks prior to the incident. She agreed to have sex with him for $20 and invited him to the trailer They were about to carry out the agreement when Mr. Gibson arrived, she panicked and rushed out of the trailer.

In the course of reviewing the evidence in his summing up the learned trial judge dismissed Mr. Gibson's evidence as "not really material". In our view this was a serious misdirection. The only issue in the case was that of consent. If the jury accepted Mr. Gibson's evidence they may well have found that it went a far way towards supporting the appellant's allegation that whatever occurred in the trailer prior to Mr. Gibson's arrival was with the consent of Ms. Small. Mr. Gibson's evidence so far from being "not really material" was in fact most material so far as the defence was concerned.

The appellant was unrepresented at his trial. In fairness to him the jury's attention ought to have been particularly directed to those inferences favourable to him which could be drawn from the prosecution's evidence. This the learned trial judge failed to do. Indeed in his review of the evidence not only did he fail to indicate the inferences favourable to the appellant which could be drawn from Mr. Gibson's evidence-he failed entirely to mention those portions of the evidence from which such inferences could be drawn. Similarly in reviewing the medical evidence although he mentioned the doctor's evidence to the effect that it was impossible for Ms. Small's injuries to be self inflicted he failed to mention the qualification which the doctor immediately introduced by saying that it was "impossible unless she was crazy" a qualification which indicated that it was not physically impossible for the injuries to have been self inflicted. It is true that the learned trial judge fully set out the defence as disclosed in the appellant's evidence. We do not however consider that this was enough. Nor do we consider that the circumstances warrant the application of the proviso.

In our