Court of Appeal
Criminal Appeals Nos. 9 and 10 of 1993
9th February, 1994
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
ROFESSOR TELFORD GEORGES, J.A.

Mr. Oscar Sabido for Appellants
Mr. L. Sooknandan, Ag. Director of Public Prosecutions, for the Respondent

Court of Appeal - Carnal knowledge - Appellants convicted and sentenced to 2 ½ years - Evidence of a complaint by a prosecutrix in a sexual offence can only be admitted if made reasonably promptly - Trial judge rightly concluded that complaint made promptly - Whether evidence inadmissible as hear say - No substance to this ground - Whether trial judge failed adequately to direct the jury as to the circumstances which would warrant an alternative charge - Penetration established - No alternative charge necessary - Direction by Judge not prejudicial to Appellant - Whether verdict unreasonable - Judge gave adequate warning - Appeal dismissed - Sentences confirmed.

J U D G M E N T

The Appellants, who are brothers, were charged with carnally knowing Susan Castellanos a female then aged 7 years. Susan was the Appellants' niece, the daughter of their sister Cathlene Flores.

As originally filed, the indictment alleged that the offence had taken place between December 27, 1991 and 3rd February, 1992. At the commencement of the case the prosecution sought leave to amend the indictment so as to allege that the offence had taken place between January 30, 1992 and February 3, 1992. This was granted.

Susan was 8 years old when she gave evidence at the trial and it was clear that she had no understanding of dates or the periods of time which may have elapsed between events. The prosecutor put dates to her which she accepted.

The gist of her evidence in chief was that between January 30, 1992 and February 3, 1992 she was at the home of her grandmother, her mother's mother. On a day during that period her grandmother and her grandfather went out to sell produce at a nearby town leaving her at home with a very young aunt and a cousin. The aunt and the cousin went off to play with friends and she was left alone. The Appellants lived in a house close by. They called her and when she went to them they pulled her into the house, took off her clothes and then their clothes and had sexual intercourse with her. She felt bad and was in pain as a result of this incident. The Appellants told her not to tell her mother what had happened.

When her grandmother returned she told her what her uncles had done. She also told one of her aunts but they said they wanted to hear nothing.

Cathlene Flores, Susan's mother, testified that she had taken Susan to the house of a friend, Delvorene Diego, on January 27, 1992. She had taken her there because she wanted her to go to a school at Santa Elena. She, Cathlene, worked at Caye Caulker and it was not convenient to travel from there to see Susan except once every two months. If Susan went to school at Santa Elena she could contact her often.

Delvorene Diego's evidence was that Cathlene had brought Flores to her house on January 24, 1992 and had left her there. On December 27, 1992 (as the record reads though plainly a mistake for January 27, 1992) an aunt, Jean Castellanos had taken Susan to her grandmother. Susan returned on January 3, 1992 (again so stated in the record in error for February 3, 1992. Her mother on that day, a Monday, came to look for her. Delvorene's evidence was that Susan's aunt Jeanette brought her back at about 7:00 p.m. on the Sunday. She did not have a close look at Susan who said that she was sleepy and did not want anything to eat. Next day she noticed the marks on Susan's neck. These marks had not been there when Susan left for her grandmother's house. Later that morning her mother came for her.

Susan's mother's evidence was that on Monday, February 3, 1992 when she saw her daughter at Delvorene she was sitting down looking ill. There were marks on her left cheek and on the right side of her neck. She questioned Susan who told her that her uncles Elmer and Estevan had kissed her on the cheek and neck, had taken off her clothes and their clothes as well and one after the other had put their "tilly" in her "tuncu" - meaning their penis in her vagina. As a result she took Susan to the police station and made a report. Susan was sent to the doctor.

Dr. Betancourt testified that he examined Susan on February 3, 1992. He found the hymen ruptured and there was presence of old scar tissue. This indicated that she had previously had sexual intercourse and there was time for healing. In his opinion minimum healing time would be 8 to 10 days. He found mild redness around the entrance of the vagina which he regarded as normal. There was no swelling to indicate recent intercourse nor did he find traces of seminal fluid. One could expect to see such swelling for up to 3 days after intercourse. Traces of seminal fluid could last also for 72 hours. There were black and blue marks on the neck and on the cheek caused by biting and suction. His conclusion was that the child had had sexual intercourse anytime between 8 to 10 days going backwards in time from the date of the examination - February 3, 1992.

Just before Dr. Betancourt was called to give evidence Counsel for the Crown applied to have the indictment further amended to restore the dates originally appearing on it, that is to substitute December 27, 1991 for January 30, 1992. This amendment was granted. A further application followed to have Susan recalled and this was granted.

She stated that the Appellants did not have carnal knowledge with her on the same day they had "vamped" her causing the marks to her cheek and neck. When pressed as to which had taken place first she was uncertain but eventually stated that the intercourse had taken place first and that the "vamping" had taken place two weeks afterwards. Although she could recite the months of the year she could not remember the month in which intercourse had taken place but accepted a suggestion that it was near Christmas time.

Each of the Appellants gave evidence on oath denying ever having interfered with Susan. Estevan agreed that he lived in the house near his mother's house, (Susan's grandmother) during the period December 27, 1991 to February 3, 1992 but stated that he would be at work all day. Elmer Estevan testified that he did not live in that house. He was not there when Susan had been taken to his mother's house.

The Appellants were convicted and each was sentenced to 2 1/2 years imprisonment. They appealed against conviction and sought leave to appeal against sentence but Mr. Sabido who appeared for them in this court asked and was granted leave to withdraw the application.

The first ground of appeal was that the trial judge should not have admitted evidence from Susan's mother that Susan had complained to her on February 3, 1992. Such a complaint would not have been fresh.

There is no dispute that evidence of a complaint by a prosecutrix in a sexual offence can only be admitted if it is made reasonably promptly after the offence was committed. In this case the date of the offence could not be pinpointed. When the evidence of the complaint was led the period defined was January 30, 1992 to February 3, 1992. The earliest date on which Susan could have seen her mother in that period was February 3 and the trial judge could rightly have concluded that a complaint made then would be fresh.

The second ground of appeal alleges that Susan was allowed to testify that she had complained to her grandmother and her aunt and that this evidence was inadmissible as hearsay. The grandmother was not called to corroborate or refute the fact. The aunt, Jean Castellanos, in her evidence did not support this allegation of complaint. Indeed she stated that she had bathed Susan immediately before sending her back to Delvorine and had seen no marks of "vamping" on her neck and face.

There is no substance in this ground. There was no more than a bare statement that she had complained. The trial judge made it abundantly clear that the fact of a complaint in no way corroborated Susan's evidence. He did not state that it was evidence of consistency which tended to establish credibility.

The third ground alleges that the Trial Judge failed adequately to direct the Jury as to the circumstances which would warrant an alternative charge of indecent assault in accordance with section 135(a) of the Indictable Procedure Act Ch. 193.

The fact is that such a direction was not required in this case. The evidence led on behalf of the Crown established penetration if it was accepted. Susan gave evidence of penetration. Dr. Betancourt corroborated this. A charge of indecent assault could only be framed in respect of the "vamping". The unnecessary direction in no way prejudiced the Appellant. The jury plainly did not act upon it.

There remains the final ground of appeal - that the verdict of the jury was unreasonable and could not be supported having regard to the evidence. There was considerable confusion as to the date when the act took place. There was, however, no doubt that someone had had sexual intercourse with Susan and that she was under 12 years of age. There was no real likelihood of mistake in the identification of the perpetrators. They were her uncles whom she knew all her life and who lived next door. The real issue was whether she had made up the story completely.

The judge stated in no uncertain terms that her evidence implicating the Appellants was uncorroborated and he gave a warning in the strongest possible terms of the dangers of convicting on the uncorroborated testimony of a complainant in a sexual case. The jury must have fully understood this warning. They saw and heard Susan and they heard the Appellants on oath.

The judge pointed out the difficulties created by Dr. Betancourt's evidence that the sexual act would have taken place some 8 to 10 days before his examination. This period made it possible that it would fall outside the period January 30, 1992 to February 3, L992 - the time frame stated in the first amendment of the indictment. In that case there was no evidence as to where Susan was staying 10 days before her examination on February 3, 1992. He did add, however, that the jury were not bound to accept Dr. Betancourt's opinion regarding the period required for healing.

We are not satisfied that the jury were unreasonable in convicting the Appellants. They would no doubt have appreciated Susan's inability to fix a definite time frame and they were not bound to accept totally the doctor's estimate as to the time it would take for the hymen to heal.

Accordingly we would dismiss the appeals against conviction. The applications for leave to appeal against sentence were withdrawn. They are dismissed and the sentences confirmed.

One matter remains for noting. At the opening of the appeal we were informed that the Appellant Elmer Castellanos had escaped from prison. Only Estevan Castellanos appeared in the dock. Mr. Sabido stated that he appeared for both Appellants. The arguments on behalf of both Appellants appeared to be identical so we gave leave for him to argue on behalf of both Appellants despite the absence of Elmer Castellanos.

The law does not make the Appellant's presence a precondition for the hearing of an appeal. The Court of Appeal Act S. 40(l) gives him an entitlement to be present at the hearing if he so wishes.

Section 40(4) of that Act provides -

"An Appellant who does not appear at the hearing by a solicitor, may present his case and argument either in person or in writing if he so desires and any case or argument so presented shall he considered by the Court".

Where, however, an Appellant has escaped from custody the Court has the power to adjourn the appeal or to dismiss it having regard to the justice of the case. In the circumstances of this case we considered that the ends of justice could best met by allowing Mr. Sabido to present the arguments which applied to both Appellants. But it should be emphasized the Court does have the power to dismiss the appeal of an absconding Appellant.

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