Court of Appeal
Inferior Court Appeal No. 10 of 2002
2002: June 28 and October 17.

Ms. C. Branker-Taitt, for the Applicant.
Respondent unrepresented.

Criminal Law - Trial judge ex proprio motu discharging Respondent at the close of the prosecution case on the basis that there was no case for the Respondent to answer - Trial judge proceeding to appraise the evidence showing weaknesses of the prosecution case instead of leaving it to the jury to decide - Whether trial judge usurped the functions of the jury - By usurping functions of jury, trial judge perpetrating a patent miscarriage of justice by depriving the state the right to have the jury try the case of an accused person against whom the necessary minimum evidence has been adduced - Circumstances in which trial judge should let matter proceed on close of prosecution case and leave it for jury to decide the reliability and truthfulness of a witness's evidence.

REASONS FOR JUDGMENT

SOSA JA

1. Marlon Blease ('the Respondent') stood trial, unrepresented, on a charge of rape before Awich J and a jury in May 2002 in Belize City. On 24 May, at the close of the case for the prosecution, the trial judge, ex proprio motu, invited submissions from prosecuting counsel on the question whether there was a case for the Respondent to answer. After hearing the submissions of prosecuting counsel, he ruled that there was no case for the Respondent to answer for the reason that there was 'no evidence to prove that [the virtual complainant]... did not agree to the [sexual] intercourse...' The judge proceeded to direct the jury to return a verdict of 'Not Guilty' and, upon the jury complying with that direction, discharged the Respondent.

2. On 28 June, 2002 we heard an application by the Director of Public Prosecutions ('the Applicant') for leave to appeal from the order whereby Awich J had directed the jury in the terms already referred to. At the end of the hearing, we granted the application for leave to appeal, treated the hearing thereof as the hearing of the appeal, allowed such appeal, set aside the verdict of acquittal and ordered the retrial of the Respondent before another judge. We now give the reasons for our oral judgment.

3. In view of the fact that we have ordered a retrial, we do not propose to refer at any length to the evidence led by the prosecution at trial.

4. Primarily, the prosecution case rested on the evidence of the virtual complainant herself. She gave testimony of having, together with a cousin of hers, washed dishes for the Respondent, as a paid service, at his home in San Pedro, Ambergris Caye on 18 October, 2001. On the following day, according to her further evidence, as she was going past the house of the Respondent, he pulled her in, threw her onto the floor, ripped different items of clothing that she was wearing and proceeded to have sexual intercourse with her without her consent. The virtual complainant testified that she shouted for help whilst the act of sexual intercourse was in progress. She said that an aunt of hers then arrived at the house and, pushing open a door, found the Respondent on top of her. Thereafter the virtual complainant gathered up her clothing and went out through the door. Her aunt later took her to the police station and reported the incident.

5. The cousin in question also gave testimony to the effect that the Respondent had grabbed the virtual complainant and pulled her, despite her resistance, into his house. According to the cousin, however, this incident occurred on 18 and not 19 October.

6. The Applicant's intended notice of appeal purports to set forth two grounds of appeal, viz,:

'(a) The learned trial judge erred in directing the jury at the close of the case for the prosecution to find the Respondent "not guilty" on the premise that the Respondent had no case to answer.

(b) The learned trial judge erred by usurping the function of the jury in his determination that the prosecution evidence was unworthy of credit.'

In our view, however, the matters so set forth constitute but one ground.

7. We accepted the appropriately brief submissions of counsel for the Applicant in support of this ground. That the trial judge fell into error, as was contended, is clear from paragraphs 8 and 9 of his ruling, at which he stated:

8. Of course, this is not the stage at which to appraise the evidence and it would be for the jury, not the judge to do that conclusively, if the case went beyond the prima facie stage.

9. There is, however, to my mind great difficulty about whether evidence has been adduced to prove that the sexual intercourse was without the consent of [the virtual complainant]. To support no consent, no agreement, there was the testimony of [the virtual complainant] that the man pulled her along, threw her on the floor, ripped off her skirt, pantie (sic) and brazier (sic) and inserted his penis into her coco; she cried for help. To support the testimony of [the virtual complainant] about lack of consent, [her cousin] said that the man called them, they went to him and then he held and pulled [the virtual complainant] into the house. But it must be remembered that the cousin did not go into the house and therefore did not see whether once inside, there was still no consent and whether perhaps there was resistance. The difficulty with the above positive items of evidence to prove no consent is that some items of the same testimonies and some other items of evidence for the Prosecution showed more strongly on the other hand, indications of consent in the following ways: [the virtual complainant] said that the time taken was up to 1 hour which was as long a time as she had been testifying (noted by Court to be 1 hr. 20 mins.). When, [the virtual complainant's] aunt... arrived she said that she knocked at the door, there was no answer. That may suggest that the people inside ([the virtual complainant] and the accused) did not want to answer when in the act. It was for the Prosecution to eliminate such an inference favourable to the accused. Then the aunt peeped and even at that moment, saw the accused still on top of [the virtual complainant]. The aunt did not describe any sign of resistance at all. She did not even attempt any. There was also music playing. [The aunt] had already got angry obviously because of what was reported to her which was not proof of what had happened or was happening inside the house, and may be (sic) because she did not like the idea of the accused, who could be about 35 years old, having sex with [her] niece, a young girl of only 18 years old (sic). The back door was not shut. [The aunt] got in and threw an article at the accused. [The virtual complainant] had gone out and dressed. She said, then her aunt took her to the Police Station to report. The evidence was not that [the virtual complainant] suggested or volunteered that the incident be reported. She said that she never talked about the sexual intercourse to her aunt then because [the virtual complainant] did not want to and she was shocked, and that she did not even talk about it on a later occasion. Then finally the clothing said to be ripped off were (sic) produced in Court. The items did not appear obviously torn by aggressive act. No tear was pointed out in the pantie (sic), there was a small hole in the skirt and one strap on the brazier (sic) was broken. [The virtual complainant] wore those items after the incident and no witness who subsequently saw her spoke about the poor state of her clothes. There have been too many aspects of the evidence that were consistent with consensual sexual intercourse.'

acceptable statement of the applicable principle of law in paragraph 8, the judge proceeded to do, in paragraph 9, just what is forbidden by that principle, viz. to appraise the evidence himself rather than leaving that function for the jury to perform at the proper time.

8. In support of her submission that this constituted an error on the part of the trial judge, counsel for the Applicant referred us to the decision of the English Court of Appeal in Barker (1977) 85 Cr. App. R. 287. In that case Barker, having been convicted of a traffic offence, made application for an extension of the time within which to apply for leave to appeal. Counsel for Barker sought to make much of certain inconsistencies in the deposition of one of the prosecution witnesses, going so far as to ask the court to hold that the conviction was unsafe and unsatisfactory. The court declined so to hold. Lord Widgery CJ, who delivered the judgment of the court, stated, at page 288:

[Counsel] bases his argument principally on the fact that at one point in his summing up the judge seemed to be telling the jury that the inconsistencies are such that they cannot convict. That is one possible conclusion to apply to one passage in the summing up. But even if he is right and even if the judge has (sic) taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury and would have been quite wrong in the present case.'

9. The statement of principle contained in the above passage from Barker was applied by the English Court of Appeal (Lord Lane CJ, Peter Pain and Stuart-Smith JJ) In the leading case of Galbraith (1981) 73 Cr. App. R. 124. Having stated that the decision in Barker must be followed, Lord Lane CJ, delivering the reasons for the judgment of the court, went on to say, at page 127:

'How then should the judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the Defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the Defendant is guilty, then the judge should allow the matter to be tried by the jury.'

10. More recently, in Director of Public Prosecutions v Jeffrey Budd, Criminal Appeal No.12 of 2001, at para. 9, this Court itself has had occasion approvingly to cite the guidance handed down by the English court in the passage from Barker quoted above.

11. We are satisfied, in the instant case, that the prosecution had adduced, in the language of the court in Barker, 'the necessary minimum evidence to establish the facts of the crime'. In the circumstances, we agree with counsel for the Applicant that the trial judge erred not only when he went on to appraise the evidence, thus entering into issues of veracity and credibility, but also, and more so, when he stopped the case on the basis of a finding, arising out of that exercise, to the effect that there were too many aspects of the evidence that were inconsistent with consensual sexual intercourse. We fear that his conduct in so doing constituted a classic illustration of judicial usurpation of the right and proper function of the jury, the latter part of paragraph 9 of his ruling providing what can fairly be called, in words borrowed from Shakespeare's Earl of Northumberland, 'a witness'd usurpation'.

12. Furthermore, in our view, the case before us falls squarely into the category of case described in the portion of the above quotation from Galbraith designated (2) (b). From the virtual complainant herself, there was evidence that the Respondent had had sexual intercourse with her without her consent. Taken at its highest, that was evidence upon which a properly directed jury could rightly convict the Respondent. That evidence placed the case well outside the two categories noted at (1) and (2) (a), respectively, of the quotation under consideration. The reliability or otherwise of the testimony of the virtual complainant was eminently a matter for the jury. Whether they would regard the case for the prosecution as strong or weak, or as neither strong nor weak, would depend on their conclusion on the issue of her reliability. However weak her evidence may have seemed to the judge, it was evidence upon which the jury, if they believed it, could have properly convicted the Respondent of the crime of rape. Accordingly, in the circumstances of the present case, the only correct course open to Awich J was to allow the case to go to the jury. By adopting a contrary course which involved effectively directing the jury to find the virtual complainant unreliable as a witness, the judge compounded his initial encroachment on jury territory and perpetrated, however unwittingly, what we are constrained to consider a patent miscarriage of justice within the meaning of section 49 (3) of the Court of Appeal Act. To speculate on what verdict the tribunal of fact would have reached can hardly be essential. Justice has flagrantly miscarried when the State has been deprived of the right to have the jury try the case of an accused person against whom the necessary minimum evidence has been called.

13. Judgment in the terms set out above thus became a necessity.

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