Appellant in person
Mr. G. Ghandi for the Respondent

Appeal against convictions and sentences of 8 years and 2 years imprisonment respectively imposed for attempted rape and grievous harm - retrial - failure of judge to direct jury's attention to inferences favourable to appellant - failure of judge to give directions on corroboration in relation to charge of attempted rape - medical evidence led by Prosecution insufficient to support verdict of grievous harm - appeal allowed - conviction for attempted rape quashed and sentence set aside - conviction for grievous harm quashed and conviction for unlawful harm substituted - sentence varied to allow for immediate release of appellant - no new trial ordered vis-à-vis offence of attempted rape.

J U D G M E N T

On January 23, 1986 the Appellant was convicted for the attempted rape of one Viola Small and for causing grievous harm to her. He was sentenced to 8 years imprisonment on the first count and 2 years imprisonment on the second count. This is an appeal against the convictions and sentences.

The evidence of Viola Small is that on August 5, 1985 she went to the Caribbean Trailer Park to visit one William Gibson who was in love with her. Later that day she went to the only building in the Trailer Park to take a mattress from the building to Mr. Gibson's trailer. She was about to leave the building when the Appellant came up and asked if there was any drinking water. She told him "Yes" and continued walking to the trailer. Upon reaching the trailer she leaned the mattress at the side of the trailer and as she opened the door she received a heavy blow to the back of the neck. She fell and when she tried to get up she received a kick in her buttocks and fell again. The person who had kicked her came on top of her, on her back, and demanded money and her keys. She gave him the keys but he then expressed his intention to have sexual intercourse with her, holding by the back of her blouse. She turned round and recognized the appellant. He told her to take off her clothes and when she resisted kicked her in her belly and ripped the zipper in her pants. Eventually she removed the pants and he pulled her panties to her knees. She was screaming for help. There was a knock at the door and the appellant then started speaking in a slow different way saying "O.K. Babes. I'll see you another time", to which she replied "Go away from here boy this is not my place, go away." Although she did not know who was at the door she started screaming "Bill, Bill, help me, call the police". The Appellant then pulled the door and went out. She wrapped a sheet around herself and also went out. She then realized that it was Mr. Gibson at the door.

The evidence of Mr. Gibson, who was also a prosecution witness, is that when he arrived at the trailer he heard taking in a low tone of voice. He hesitated and then knocked. Viola said "Wait a minute" and then said "You cannot stay here. This is not my house". Two or three seconds later she rushed out with a sheet wrapped around her hollering "Rape, Murder". Three or four seconds later the appellant came out and said "That woman is crazy as hell". When Mr. Gibson spoke to him the Appellant then proceeded to tell him that he had met Viola 2 weeks earlier downtown. In cross examination he said he did hot hear Viola say "Bill, Bill call the police".

The Appellant made an unsworn statement from the dock in which he said that he had met Viola Small 2 weeks earlier. He offered her $20 to go to bed with her and she agreed. They entered the trailer. She removed her pants and panties. When there was a knock at the door she panicked. She said, "Wait a minute. This is not my house". Then she wrapped a sheet around her and ran from the trailer. When she was outside and saw Mr. Gibson she said, "Help, rape".

At a previous trial the appellant was convicted for attempted rape and unlawful harm. In allowing his appeal from the those convictions we observed, "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 toward supporting the appellant's allegation that whatever occurred in the trailer prior to Mr. Gibson's arrival was with the consent of Miss Small. 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." Those observations apply with equal force to this trial. Unfortunately the learned trial judge, while adverting to Mr. Gibson's evidence and pointing out to the jury that they had to decide whether to accept his evidence or that of Miss Small, failed to direct the jury's attention to the inferences favourable to the Appellant which could be drawn from Mr. Gibson's evidence, particularly on the vital issue of' consent. In addition in the summing up there was what counse1 for the Crown quite frankly conceded was a serious omission in the failure to give any directions as regards corroboration in relation to the charge of attempted rape. Counsel invited us to consider applying the proviso but he very properly conceded that this course would not be appropriate if we considered the directions in re1ation to Mr. Gibson's evidence to be less than adequate, in which event the conviction for attempted rape could not be upheld.

In so far as the second count is concerned Mr. Gandhi, again in the best tradition of prosecuting counsel, indicated that the medical evidence was insufficient to bring a verdict of grievous harm and supported only a conviction for simple harm.

In the result the appeal is allowed. The conviction on the first count for attempted rape is quashed and the sentence set aside. The conviction on the second count for grievous harm is quashed and a conviction for unlawful harm substituted. The sentence of 2 years on this count is set aside and a sentence substituted of such duration as will ensure the immediate release of the appellant. As we have previously mentioned this is the second trial of the Appellant on these charges. We do not consider that in the interest of justice a third trial should be ordered on the first count.

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