Mr. Sampson for Appellant
Mr. Lumor, Director of Public Prosecutions, for the Crown

Appeal against conviction and application for leave to appeal against sentence of 8 years imposed for rape - failure of judge to tell jury that while certain items of evidence seemed to confirm parts of the complainant's version they did not amount to corroboration - no details of purported recent complaint led - misdirection in the absence of such details to direct jury that report was admissible to show consistency - voluntary intoxication - rape crime of basic intent - Section 26(4) of Criminal Code inapplicable - appeal allowed - conviction quashed and sentence set aside - new trial ordered.

J U D G M E N T

On April 9, 1990 the Appellant was convicted for rape and sentenced to imprisonment for 8 years. He appealed against his conviction and sought leave to appeal against his sentence.

The complainant was born in May 1972. Her evidence is that on the night of January 9, 1989 she went to her sister's home at Plues Street. Among the persons at the home at the time was the Appellant whom she had known for some 2 years. They were going out when she arrived and she therefore left. Later while she was talking to friends on Norfold Street the Appellant came and asked who she was out there with. When she said she was with the boys (her friends) he moved away but came back with a machete which he swung at one of the boys. She walked towards the post office, followed by the Appellant. At the end of Pinks Alley the Appellant held her by the back bf her hair, threatened to hit her with a bottle and after he had roughed her up he took her to his home. She escaped and jumped over a fence but the Appellant followed her and caught her when she fell in a muddy area. He again took her back to his home where he hit her on the left arm with a pinch bar, bruising it. He dragged her out of the house and eventually took her to the yard of the "Poor House" on Wilson Street where he had intercourse with her against her will.

The Appellant who was unrepresented at his trial gave evidence on oath. He said that there had in the past been a relationship between the complainant and himself and after this came to an end she continued to come to him for help with money and food. On the night in question she told him at her sister's home that she wanted to see him. Later they met and walked together to his home. He had been drinking and he did not know whether he slept there with the complainant but if he did it would have been with her consent. He awoke when she began "bugging" him for money and he then hit her and chased her from the house. They both fell in a ditch outside the house and the complainant left for her home while he returned to his.

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

"1. The Learned Trial Judge erred in allowing Doctor Reyes to stray outside the limits of her expert skill and offer an opinion on the presence/absence of consent which ought properly to have been left to the jury.

2. The Judge erred in directing the Jury upon 4 instances in the evidence as being capable of corroboration which were not in fact corroborative."

In relation to the first ground counsel referred to the evidence of Dr. Reyes that "The girl was 'not small' and with normal intercourse I would not expect redness". This evidence counsel submitted, could be equated with that of the doctor in Harry Williams and Alfonso Gilharry v. The Queen Criminal Appeals 10, 11/1976 which this court said went beyond the Doctor's proper function of indicating the signs of injury found and the physical factors which could have caused them or were consistent with them, and offered an opinion on the presence or absence of consent. In that case the impugned evidence quoted in the judgment is that "Freely given sex would be unlikely to cause the abrasions" and reference is also made to other passages in the doctor's evidence which are not quoted but in which the doctor indicates that the abrasions suggested to him that the sexual act was not voluntary. We do not consider that Dr. Reyes' evidence in the present case went so far as to indicate an opinion as to whether intercourse with the complainant was voluntary or went beyond the doctor's proper function.

As regards the second ground counsel referred to the passage in the learned trial judge's summing up in which he indicated as being capable of amounting to corroboration:

(1) the evidence of the witness Keith Middleton

(2) the evidence of the bruise on the arm seen by the complainant's brother and Dr. Reyes

(3) the evidence of P.C. Segura that the complainant's clothes were muddy when she came to the police station; and

(4) the doctor's evidence.

Counsel referred to James v. R. (1970) 55 Cr. App. Rep. 299 in which the trial judge, having defined corroboration as "independent evidence which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it" told the jury "the doctor seems to me to corroborate the complainant that intercourse had taken place. It is a matter for you. Whether you regard the doctor's evidence, in relation to the finding of the semen on these various garments and on these various objects, whether it amounts to corroboration, is a matter for you. So that, as I said before, if intercourse had taken place, the question is, was it without consent of the complainant Elsada Hall? The next question would be, was the prisoner the man?"

The Privy Council decided -

"True it is that the medical evidence and the evidence of what was found on Miss Hall's clothing and on the articles taken from her bed confirmed her testimony that intercourse with her had taken place on her bed, but there was no medical evidence that the intercourse had taken place without her consent; and the judge directed the jury that, if they accepted that evidence, it could amount to corroboration in the sense in which he had already explained to them that the word was to be understood.

In their Lordships' view, this direction was entirely wrong. Independent evidence that intercourse had taken place is not evidence confirming in some material particular either that the crime of rape had been committed or, if it had been, that it had been committed by the accused. It does not show that the intercourse took place without consent or that the accused was a party to it. There was in this case no evidence capable of amounting to corroboration of Miss Hall's evidence that she had been raped, and raped by the accused. The judge should have told the jury that. His failure to do so was a serious misdirection, so serious as to make it inevitable that the conviction should be quashed."

The evidence of Keith Middleton that he saw the Appellant and the complainant walking in the vicinity of the US Embassy towards the Belize City Prison tended to confirm the complainant's evidence as to their movements after leaving the Appellant's home. The evidence of the bruise tended to confirm the complainant's evidence of being roughly treated by the Appellant. The evidence of P.C. Segura that the Complainant's clothes were muddy tended to confirm her evidence that she fell in a muddy area and the doctor's evidence tended to confirm the Complainant's evidence of sexual intercourse. None of this evidence however amounted to corroboration that the Appellant had intercourse with the complainant without her consent and, following the Privy Council's decision in James v. R. (1970) Cr. App. Rep. 270 the jury ought to have been told this. In addition, the learned trial judge misdirected the jury by suggesting that the evidence of the muddy clothes was consistent with the complainant's story that she was flung on the grass. The appeal therefore succeeds on this ground.

The third ground of appeal is that the learned trial judge misdirected the jury in law respecting the manner in which they should use the complainant's evidence of recent complaint about the alleged rape. The learned trial judge told the jury -

"There is one item of evidence which in law is not considered as corroboration. This is the complaint which Muriel made to her brother Wilhelm, but although it is not corroboration it is, having been made so soon after the event, consistent with her story that she had been raped. It is not consistent as to whether the intercourse was on the grass, although this is what she told you. It is not corroboration but consistency in her story."

In fact neither the complainant nor her brother in evidence gave any details of the report made by the complainant to him. The brother simply said that the complainant gave him information and "mentioned Smithie, who is the accused, as her attacker". This was as counsel submitted equally consistent with a report of an assault by the Appellant. In circumstances in which the jury had been correctly told that in the absence of corroboration, it was dangerous to act on the complainant's evidence unless they "believed her 100%" and in which there was no clear evidence corroborative of rape it was in our view particularly unfortunate that the learned trial judge referred to the evidence of the complainant as consistent with the complainant's story that she had been raped. It is true that evidence was admitted from Constable Segura to the effect that the complainant had alleged to him "that she had been raped by one Renaldo Smith". In our view however this evidence ought not to have been admitted. It was not a report made at the first reasonable opportunity. The complainant had already seen her brother Wilhelm to whom indeed she made a report, then her other brother and then her sister who took her to the police. It is the report to her brother Wilhelm which was in our view admissible and unfortunately as we have indicated no evidence was led either from the complainant or from her brother as to the details of that report which may have shown consistency of conduct by the complainant. We cannot say that in the absence of the misdirection by the learned trial judge the jury would have convicted. The appeal therefore succeeds on this ground also.

The fourth ground of appeal is that the learned trial judge failed to direct the jury adequately on the application of section 26(4) of the Criminal Code. That section provides as follows -

"26 (1) ….

(2) ….

(3) ….

(4) Voluntary intoxication shall be taken into account for the purpose of determining whether the person charged had formed any specific intention in cases where a specific intent is an essential element in the offence charged."

Counsel submitted that the learned trial judge ought to have directed the jury that if as a result of drunkenness the Appellant was incapable of forming the intention of having sexual intercourse with the complainant without her consent he ought to be acquitted. In our view the short answer to this submission is that rape is not a crime of specific intent but of basic intent, so that section 26(4) can have no application to it. The learned trial judge was therefore unduly generous to the Appellant when he directed the jury that if they believed that through drunkenness the Appellant genuinely believed that the complainant was consenting they ought to acquit.

The final ground of appeal is that the learned trial judge failed adequately to direct the jury that in law the character of the complainant is relevant to consent. Counsel's complaint was that having told the jury that although described as a stray girl the complainant was entitled to protection of the law and had a right to refuse so that they should not assume that being a stray girl she had consented, the learned trial judge ought to have told the jury also that her character was neverthess relevant to consent. In fact the learned trial judge went on to tell the jury:

"At the same time the accused is 37 years old and she was 16 1/2 years old and if you believe what he says that he was fooling with, her for 7 months and had intercourse with her, there is no reason to suppose that on that particular occasion she will withhold her consent. If you believe his evidence he had been with her before and had sexual intercourse with her, what prevents him from having intercourse with her on that occasion?"

In our view this was sufficient.

For the reasons we have given however we allow the appeal, quash the conviction and set aside the sentence. We consider however that the interests of justice require that there be a new trial and we so order.

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