Brown v Commissioner of Police

JurisdictionBahamas
CourtSupreme Court
JudgeHall, J.
Judgment Date01 Jan 1992
Docket NumberCriminal Side No. 18 of 1991

Supreme Court

Hall, J.

Criminal Side No. 18 of 1991

Brown
and
Commissioner of Police
APPEARANCES:

Mr. Phillip Davis for appellant

Mr. Bernard Turner for respondent

Criminal law - Appeal against conviction — Indecent assault — Appellant convicted of charge under section 289(2) of the Penal Code, Ch. 77 — Section 17 of Domestic Violence Act, 1991 — On facts magistrate could have convicted under s. 289(1) of the Penal Code — Prosecution failed to prove offence under s. 289(2) and as s. 289(1) and (2) create different offences, there being only one offence charged, appeal allowed.

JUDGEMENT
Hall, J.
1

The appellant appeals his conviction of a charge alleging that he:– “…did by use of false and fraudulent representations as to the nature and quality of the act …” commit an act of indecent assault contrary to section 289(2) of the Penal Code, Chapter 77 (“the Penal Code”).

2

The section — since repealed and replaced by provisions of The Sexual Offences and Domestic Violence Act, 1991 No. 9 of 1991 (“the 1991 Act”) — provides:–

“Whoever –

  • (1) indecently assaults any female

  • (2) does anything to any female by her consent which, but for such consent, would be an indecent assault, such consent being obtained by false and fraudulent representations as to the nature and quality of the act,

    shall be liable to imprisonment of eight years.”

3

The current equivalent is section 17 of the 1991 Act where the only change is that the offence is now gender neutral with “person” replacing “female”.

4

The evidence on which the prosecution relied was that the virtual complainant (whom I shall refer to as “E”), a 19 year old friend of the apnellant's daeghter (“S”), was at her mother's shop which she runs and where S is employed when the appellant came by and enquired where she and S had been the previous night. E left S at the cash register and followed the appellant outside. She got into his car and he drove towards Montagu Beach. He enquired as to where she and S had been on the previous evening and E told him they had been to her uncle's birthday party. The appellant drove to Bay Street and then downtown Co the building where he, an inspector of police, worked as a magistrate's Court prosecutor. He used keys to open the building and E accompanied him to his office which was deserted as it was a Sunday.

5

The appellant asked E if she had a boyfriend — then he asked whether she believed in obeah. He looked at her hand and said she had “a bad spell over [her] and someone was trying to get between [her] and [her] boyfriend”. She says she was uncomfortable; she was curious; she did not believe what he was saying to her. He asked when last she had had sex; E replied that she had not had sex within the last two weeks.

6

He told her to take down her pants; she asked why. He explained that she “had a bad spell over [her] and it needed to be broken”. She pulled her pants down halfway. The appellant pressed the side of her abdomen and told her “to take down her pants again”. When she asked why he said “all of this was a part of the procedure”. She dropped her pants to her ankles. She explained that she took her pants off because she thought she could trust him because of “his position” and the fact that his daughter was her age. He instructed her to lie down on a sweater that was on a chair behind another desk and — upon her enquiring — he explained that that was “another part of the procedure”. Although she told him she did not think he “should be doing this” she did lie down; he lay on top of her (he had not removed any of his clothing) and when she tried to push him off he took out his penis and ejaculated over her pudenda… (It is not clear whether she removed her undergarment when she took off her “pants”: however, it does appear that her pudenda was exposed as she describes the appellant as having “come all over [her] private parts”.)

7

He got off her and she used tissues to clean up herself. When she asked why he had done that to her he replied that she had had a bad spell on her and all of that was a part of the procedure.

8

He took out a law book and asked her if she knew the penalties for being “caught with coke”. They remained in the office for 30 – 60 minutes talking about offences under the Dangerous Drugs Act and then he took her back to the store asking that she keep everything that he had done “strictly confidential”.

9

In cross examination, E says that she did not believe the story the appellant had told her about a bad spell and the procedure and although she did lie down on the sweater she did not trust him; yet she did so because of the story.

10

After E had made a report to the police, the appellant admitted speaking to E at Montagu about being out at night with S but he specifically denied that E had ever been in the office with him or that he had had sexual contact with her. A sweater which Police Constable Shebina Thurston, who is attached to the prosecutor's office and whose desk adjoins the appellant's, had left in the office that weekend was analysed and found to have seminal stains on it.

11

Mr. Davis made a no-case-to-answer submission at the close of the case for the prosecution, which submission the learned magistrate rejected. The appellant gave sworn testimony to the effect that he had gone to the store to seek out the person whom S's grandmother - with whom she lived at tie time had reported to him had kept S out late the previous night. At the store S pointed out E and E suggested that they drive to Montagu Beach and talk as she could not speak with him at the store. He told her of his concern and that he disliked the idea of E keeping his sixteen year old daughter out late and that he had information that E and her boyfriend were involved in drugs and he did not want S to become involved. He denied having taken E to his office or of having conversation about obeah or of sexual activity.

12

The magistrate found the charge proved and her findings of fact as to the events of the day in question — once she would have found E believable - appear almost inevitable when one considers the evidence of the semen found on the sweater Police Constable Thurston had left in the office.

13

In the course of her carefully written ruling, the learned magistrate said:

“This Court had to determine whether having regard to all of the circumstances of the case, the consent of the complainant was obtained by false and fraudulent representations, as to the nature and quality of the act. The evidence suggests that the complainant consented to the acts of which she complained with a great deal of perplexity and reluctance. In describing her feelings she said she was uncomfortable, curious, used and felt nasty and she thought she could trust him. She also said she did not believe what he was saying to her. It is quite clear that the...

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