Court of Appeal
Criminal Appeal Nos. 1 and 2 of 1991
12th June, 1991
KENNETH ST. L. HENRY, P.
DR. NICHOLAS J. 0. LIVERPOOL, J. A.
SIR JAMES A. SMITH, J. A.

Mr. Dean Barrow, S. C., for the First Appellant
Mr. Eamon Courtenay, for Second Appellant
Mr. Lumor, for the Respondent.

Criminal Appeal against convictions for rape - Court of Appeal allowing appeals and setting aside sentences of 9 years imprisonment and ordering trial de novo in respect of the First Appellant - Second Appellant alleged to having aided and abetted First Appellant in committing rape - Report by complainant t the police after occurrence of sexual intercourse - Whether report could amount to corroboration - Direction as to corroboration of the evidence of accomplices - Only appropriate where accomplices are called as witnesses for the Crown - Presence or absence of reasonable grounds for believing that a woman is consenting to sexual intercourse matter to which jury to have regard in cases of rape - Section 68(2) of the Criminal Code.

J U D G M E N T

On June 5, 1991 we allowed these appeals set aside the convictions for rape and sentences of 9 years imprisonment imposed on each Appellant and in the case of the Appellant Escalante ordered that there be a new trial. We now give reasons in writing for our decision.

On January 28, 1990 the complainant, who was then a girl of 14 attending primary school in Ladyville, left for lunch and on the way encountered the Appellant Escalante. He took her to the home of the Appellant Reyes where, according to the complainant, he took off her panty and loosed his pants. She resisted, scratching him in the face. At this point the second Appellant and another man came to the house and started to talk. Escalante took her to a corner of the hall where he demanded from her money which she had to buy chicken. Reyes then opened the room door and he and the other man left. Escalante took her into the room where he had sexual intercourse with her against her will. At this stage Reyes returned, Escalante said it was his turn and Reyes went on top of her. He did not however have sexual intercourse with her. One Mr. James came and knocked his machete against the house saying that a little girl was in the house. Reyes denied this and after Mr. James left Reyes gave her a comb to comb her hair. She did so and then ran towards her home.

The first two grounds of appeal which were argued together on behalf of the Appellant Reyes are as follows:

"2. That the learned trial judge erred in law in failing to give the jury adequate directions on the law of aiding and abetting in so far as it related to the second appellant.

3. That the learned trial judge's directions to the jury relating to the circumstances in law in which the second appellant would be guilty of aiding and abetting the first appellant were wrong in law."

The directions of the learned trial judge were in the following terms:

"This is a joint charge, it is unusual for an Indictment which charges both accused with rape itself. You heard Mr. Lumor on this but I will go on a little further. The prosecution must prove to satisfy you that each accused at some stage together set out having agreed to have sexual intercourse with Clarine or one accused facilitated the other to have sexual intercourse with her. The allegation is that Carlos facilitated Oscar by agreeing with him for the use of his house and to be rewarded with "his turn" with Clarine; for the forcible violation of her body through sexual intercourse i.e. that Carlos aided and abetted Oscar in the criminal act complained of. You have to look at the case against each individual. You look to see if there was any tacit or expressed understanding between two Accused as to the acts complained of against each one of them. If you so find then Carlos as aidor and abettor in law is as guilty as Oscar of the crime you find proven. So you are to look to all the evidence and see if there was an agreed enterprise ? that Carlos agreed with Oscar beforehand to let Oscar have the use of his house to forcefully have sexual intercourse with Clarine or if they agreed that if Carlos gave use of his house he would have "his turn" at Clarine also; then each would be subject to the same verdict on the facts, even if Carlos didn't succeed in penetrating Clarine to complete sexual intercourse with Clarine. You look for tacit or express understanding between the two or absence."

Counsel for the Appellant submitted that these directions failed to make it clear to the jury that they could only convict the second Appellant for rape as an aider and abettor if they were sure that whatever he did to facilitate sexual intercourse between the complainant and the Appellant was done with the knowledge that that sexual intercourse was to take place without the consent of the complainant. The use of the expression "forcible violation" and the reference to forcefully having sexual intercourse, Counsel submitted, suggested that the mere use of force during sexual intercourse was sufficient to establish lack of consent. We do not agree. Almost immediately after these directions the learned trial judge told the jury:

"Now let us turn to the charge itself, it is carnal knowledge. A crime is committed when a man has sexual intercourse with a female and has that sexual intercourse, against the female's will, that is, without her consent. Upon all this evidence you must be satisfied so that you feel sure that each accused or any one of them used force or threats or fraud in order to overcome her defences, her will, of Clarine to carnally know her and also that one aided and abetted the other to do so. In evidence, there must be evidence to show that Clarine was overcome by the use of force or put in fear by threats or use of force by Oscar or any or both of the two accused for any or both of them to have had sexual intercourse with her. Of course there is nothing wrong in law with consensual intercourse, that is, sexual intercourse between consenting adults but the emphasis is on consensual, both parties must be in agreement. That is why the prosecution must on the evidence which they presented satisfy you that force was used or threats of use or fraud to put Clarine in fear to make the sexual intercourse unlawful."

In our view in the light of these directions the jury ought to have been aware that in so far as the Appellant Reyes was concerned they had to be sure that what he knowingly facilitated was the act of rape, in order to convict him.

The next ground of appeal argued was:

"1. That the verdict of the jury in relation to the second Appellant is unreasonable and cannot be supported having regard to the evidence."

The Appellant Escalante's evidence at the trial was that the complainant went willingly with him, had indeed visited him and at his home on previous occasions and that what took place, including the eventual act of sexual intercourse which he admitted, was with her consent. In an unsworn statement the Appellant Reyes stated that he went to his home to collect soap powder, that when he saw the complainant and Escalante and blood on the floor he opened the room door and told them to clean up the mess. Counsel for the Crown conceded that there was no evidence to indicate that when Reyes came on the scene the complainant either attempted to escape or gave any indication that whatever was taking place was against her will. Although therefore there was evidence from which the jury could conclude that Reyes acted to facilitate sexual intercourse between the complainant and Escalante there was not sufficient evidence that he must have been aware that intercourse was to be without the consent of the complainant. The appeal was therefore entitled to succeed on this ground.

In addition, a number of grounds of appeal in relation to the directions of the learned trial judge on corroboration were successfully argued on behalf of both Appellants. It was submitted, firstly, that the learned trial judge's summing up suggested that the report made by the complainant to the police after the incident could amount to corroboration and secondly that in dealing with the evidence which was capable of corroborating the complainant he referred to a number of matters which could not amount to corroboration.

The learned trial judge began to deal with the evidence which in his view could amount to corroboration at p. 51 where he said:

"I have to point out to you the relevant pieces of evidence as a person trained in law these appear to be and may amount to corroboration but since we have a system where by looking at the evidence by itself it can amount to corroboration when the witness gave that evidence. You might find that the words amounted to corroboration, but in fact when the witnesses, when they said those words by their demeanour may not have satisfied you."

It is clear that he continued to do so up to page 59 where he said "So that again is some evidence capable of corroborating Clarine's as to the sexual intercourse" because at page 53 he said "Those are evidence which are capable of corroborating Clarine's evidence but it is for you to decide whether it amounts to corroboration" and at page 57 he said "As I said I will not touch on every bit of the evidence, you are to fill in the remainder but I am just reviewing parts of it and at this time in particular I am raising, highlighting, those which are capable of corroborating Clarine's evidence". However at page 52 he said:

"You have the evidence of Ms. Nicholas and Sgt. Willoughby, to consider. That they went to river side where Carlos was washing his shirt, washing out stains from it and that she reported, the fact that Clarine reported what had happened to Sgt. Willoughby. Now as Mr. Flowers says the fact that she reported and what she reported need not be necessarily true but the law allows what is normally prohibited under the hearsay rule. Sgt. Willoughby would not have been allowed to give that evidence but in this case, in crimes of this nature it is accepted that the third party may give evidence as to what was said to him to show consistency in the complainant/victim. She gave this report and has either stuck to it you might find or has moved from it."

Counsel for the Crown submitted that in that passage the learned trial judge intended to indicate to the jury that the complainant's report to Sgt. Willoughby was not capable of amounting to corroboration of her evidence but merely showed consistency of conduct. Unfortunately the learned trial judge did not so state. In the context in which the passage appears the jury must, we think, inevitably have concluded that the learned trial judge intended to convey to them that the report, like all the other evidence to which he was at the time referring, was capable of amounting to corroboration. This would clearly be a misdirection. As Avory J. observed in George Coulthread (1933) 24 Cr. App. Rep. 44 at 48:

"a complaint of this sort, though it may be evidence of the consistency of the complainant's story, is not corroboration in the proper sense in which that word is understood in cases of this kind."

Counsel for the Crown conceded that the learned trial judge also referred to a number of other matters which were not capable of amounting to corroboration in the sense in which that word is to be understood in cases of this kind. In so far as the Appellant Escalante was concerned the real issue was that of consent. The jury ought therefore to have been directed to look for corroboration particularly in relation to this aspect of the complainant's evidence and ought to have been warned that in the absence of such corroboration it was dangerous to act on that evidence although they could do so if they were sure that she was speaking the truth in that regard.

In our view the conviction of the Appellant Escalante for rape cannot stand in the face of these misdirections on corroboration. For these reasons we allowed the appeals and set aside the convictions and sentences. In the interest of justice however we considered that a new trial ought to be ordered in relation to the Appellant Escalante. As regards the Appellant Reyes one of the grounds on which his appeal was allowed was that the verdict was unreasonable. To order a new trial would therefore be inappropriate since it would afford the prosecution an opportunity of filling the gap in their evidence.

We do not consider it necessary to deal with a number of other grounds of appeal which were filed. We wish however to observe that a direction as to corroboration of the evidence of accomplices is only appropriate where accomplices are called as witnesses for the Crown.

We wish also to observe that in our view section 68 (2) of the Criminal Code applies whenever an accused person is charged with rape, irrespective of the age of the person alleged to have been raped. Section 68 (2) provides:

"(2) It is hereby declared that if at a trial for rape the jury has to consider whether a man believed that a woman was consenting to carnal knowledge the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed."

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