Johnson v R
| Jurisdiction | Bahamas |
| Judge | Allen, P.,Crane-Scott, J.A. |
| Judgment Date | 03 April 2017 |
| Neutral Citation | BS 2017 CA 49 |
| Docket Number | SCCrApp & CAIS No. 38 of 2015 |
| Court | Court of Appeal (Bahamas) |
| Date | 03 April 2017 |
Court of Appeal
Allen, P.; Crane-Scott, J.A.; Jones, J.A.
SCCrApp & CAIS No. 38 of 2015
Appellant appeared Pro se.
Mr. Vernal Collie, counsel for respondent.
Criminal Law - Sexual offences — Unlawful sexual intercourse — Sentence of 20 years imprisonment — Appeal against conviction and sentence — Good character — Whether learned trial judge erred in not directing jury on relevance of good character — Whether conviction unsafe and unsatisfactory — Whether sentence excessive — Appeal dismissed.
Held: (Crane-Scott, J.A. dissenting) Appeal against conviction and sentence dismissed. Conviction and sentence affirmed.
per Allen P: Contrary to the appellant's complaint that the verdict is unreasonable and cannot be supported by the evidence, as a result of the major inconsistencies and contradictions in the evidence. The jury, no doubt followed the judge's clear instructions and properly found the inconsistencies and discrepancies complained about to be minor and such that they did not weaken or destroy the evidence of the complainant or that of his father that the appellant committed the offence.
Penetration is not an essential element of the offence of which the appellant was convicted. Indeed sexual intercourse includes any degree of penetration, or stimulation…of the anus of any person, by or with any part of the body of another person.
As to the issue of the appellant not being given a good direction, precedent indicates that it is the duty of counsel to raise the issue of good character because only counsel knows the instructions of his client. That notwithstanding, judges would be well advised to ask counsel whether they intend to put the character of the accused in issue so as to clarify the situation, in as much as the failure to do so may render the verdict unsafe. It is clear that it is not to be automatically assumed that the omission of a good character direction is always fatal to the fairness of the trial or to the safety of a conviction. That depends on whether, given the nature of the issues, the strength of the evidence in the case; and the likely impact of a good character direction on those issues and evidence, the lack of a good character direction would have affected the jury's verdict and the safety of the conviction.
In this case, it cannot be gainsaid that the appellant was entitled to a good character direction; but in our view the omission was not fatal to the fairness of the trial or the safety of the conviction. The evidence against the appellant was overwhelming. The boy's complaint of sexual intercourse was corroborated by the evidence of the father who gave evidence that he caught the appellant in the act of having sexual intercourse with his son.
The appellant complained that evidence of his bad character was brought to the attention of the jury by the prosecution witnesses to his prejudice. In fact, the appellant's counsel introduced it by asking the virtual complainant's father whether he had come to know the appellant through his step-son with whom the appellant had spent time in Fox Hill prison. The witness' answer was that he did not know how the appellant met his step-son. Thereafter, the learned judge immediately warned the jury that they should disregard the question in that it was not relevant to the case under consideration. There was in our view, absolutely no need to make more of it than the learned judge did; and in our view the appellant suffered no prejudice.
In relation to whether the appellant's conviction was unsafe and unsatisfactory; we have no lurking doubt, no unease about the safety of the conviction. The evidence against the appellant is cogent and overwhelming.
As to the sentence for 20 years imposed on the appellant, the maximum sentence for an offence under section 16(1) of the Sexual Offences Act, is life imprisonment. After a review of the circumstances of the offence and of the offender before the judge at sentencing, we were unable to say that she erred. Consequently, the sentence of twenty years' imprisonment in the circumstances was appropriate.
Barrow v. The State [1998] A.C. 846 Mention
France & Anor v. The Queen (Jamaica) [2012] U.K.P.C. 28 Followed Stafford v. Director of Public Prosecutions [1973] 3 All E.R. 762 Followed Stafford v. The State [1999] 1 W.L.R. 2026 Mention
Teeluck v. The State [2005] U.K.P.C. 14 Mention
per Crane-Scott, J.A.: In cases where credibility is paramount, and the jury was faced with a choice between deciding whether they could accept the evidence of the prosecution witnesses or reject the appellant's denial as untrue, there is a marked reluctance, even in the face of overwhelming evidence, to accept that the application of the proviso is appropriate since credibility is the very issue on which a direction on credibility and propensity based on good character might have had some effect. When credibility is in issue, a good character direction is always relevant. The appellant having had no previous convictions was therefore a person of good character and was entitled to the benefit of a good character direction because “it is evidence of probative significance” and “capable of having some effect in every case in which it is appropriate for such a direction to be given”. He was deprived of the direction due to the failure of his counsel to raise the issue directly in the trial.
One aspect of the prosecution's case which, may have had a bearing on the credibility of the prosecution case and which (together with a proper good character direction) could equally have weighed in the appellant's favour was the inconclusive nature of the medical evidence. In this case it was clearly a feature of the evidence which combined with a proper direction as to the relevance of the appellant's good character, could have weighed in the appellant's favour.
Andre Birbal v. Regina SCCrApp. No. 18 of 2011 Mention
France & Anor v. The Queen (Jamaica) [2012] U.K.P.C. 28 Mention
R v. Fulcher [1995] 2 Cr. App. Rep 251 Mention R v. Kamar (1999) Times Mention
Sealy & anor v. Regina. Mention
Teeluck v. The State [2005] U.K.P.C. 14 Applied
On 27 June 2016, we heard the submissions of counsel and dismissed the appeal with a promise to render our reasons at a later date. This we now do.
The appellant was convicted before Charles, J. and a jury of the offence of (unnatural) sexual intercourse pursuant to section 16(1) of the Sexual Offences and Domestic Violence Act on 11 December 2014. The prosecution's case before the jury was that on Tuesday 27 August 2013 the appellant picked up the virtual complainant who was then 8 years old from his mother's residence on Blue Hill Road and carried him to his father's residence on Augusta Street. The father of the virtual complainant, the appellant, together with the virtual complainant sat for a while in the yard of the father's home. The father then went inside his home for a short while, leaving the virtual complainant outside alone with the appellant.
At trial, the father explained that when he came back to where he had left his son and the appellant, they were not there and that upon searching for his son, he noticed a curtain hanging from the top of the door of the shed in his backyard. Alarmed by the irregularity of the hanging curtain, the father removed the curtain and saw the appellant with an erect penis standing behind his son who had his pants around his ankles with his naked bottom cocked upwards. Criminal Investigation Department (CID) officers in the area noticed an altercation going on and arrested the appellant after learning of the reason for the altercation, namely the allegation of the father that the appellant had molested his son. The virtual complainant confirms he was molested by the appellant stating that the appellant “put his doggie in my bongie.”
Section 16(1) of the Sexual Offences and Domestic Violence Act (‘the Act’) provides that any adult male who has sexual intercourse with another male who is a minor, whether with or without the consent of that other male, is guilty of a sexual offence and liable to imprisonment for life. Section 4 of the Act defines “sexual intercourse” to include ‘sexual connection occasioned by any degree of penetration of the anus of any person, or by the stimulation of the anus of any person, by or with any part of the body of another person’.
On 17 December 2014, the appellant was sentenced to 20 years' imprisonment. The appellant appealed his conviction and sentence on the following grounds;
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(i) That in all circumstances of the case the verdict is unreasonable and cannot be supported by the evidence, there being major inconsistencies and contradictions.
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(ii) That the prosecution failed to give the defence discovery of an important piece of medical evidence that conflicted with the medical evidence presented to the defence in the VBI.
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(iii) That the prosecution failed to prove penetration as an essential ingredient of the offence.
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(iv) That the attorney for the defence failed in his duty to bring into evidence the good character of the appellant and to enter a “no case” submission at the close of the prosecution's case. There was no direction by the judge to the jury as to the appellant's good character.
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(v) That evidence alluding to the appellant's bad character was introduced by prosecution witnesses to the prejudice of the appellant. Prejudicial evidence of bad character was introduced to the jury.
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(vi) That in all the circumstances of the case the verdict was unsafe and unsatisfactory.
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(vii) That the sentence was too severe and unduly harsh.
As to ground (i), at page 191 lines 22-32, page 192 lines 1-32, page 193 lines 1-32 and page 194 lines 1-17 of the transcript in her summing up of the case to the jury, the learned judge addressed the issue of inconsistencies. The relevant...
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