Josue Celestin v The Attorney General

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett,Madam Justice Crane-Scott, JA,Mr. Justice Jones, JA
• Judgment Date: 10 June 2020
• Neutral Citation: BS 2020 CA 50
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp. No. 50 of 2019
• Date: 10 June 2020

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, President

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCrApp. No. 50 of 2019

Between

Josue Celestin

Appellant

and

The Attorney General

Respondent

APPEARANCES:

Mr. Fedner Dorestal, Counsel for the Appellant

Ms. Kendra Kelly, Counsel for the Respondent

Criminal appeal — Rape — Good character direction — Loss of character shield — Duty of counsel to raise evidence of good character — Whether sufficient evidence led to trigger the judge to give a good character direction to the jury — Whether failure to give a good character direction affected the safety of the conviction — Section 8 of the Sexual Offences Act — Section 171 of the Evidence Act

The appellant and his wife shared a home with M, a relative of the appellant's wife. M alleged that on 9 November 2015, while the appellant's wife was not at home, the appellant entered her bedroom, armed with a screwdriver and forced her to perform oral sex on him. Thereafter, he inserted his finger into her vagina and placed his tongue on her vagina. She testified that all the acts were performed without her consent. Following the incident, she informed a male friend, LT, who confronted the appellant. Once the matter was reported to the police the appellant was arrested and charged with the offence of rape.

The appellant's defence was that all acts were consensual, and he denied possessing a screwdriver during the incident. He testified that he and the virtual complainant had an agreement that he would pay her $50 to engage in these acts and it was only once he indicated that he did not have the $50 was the matter reported LT who, he says, beat him up for not paying for the sex as agreed. The appellant asserted that M was a prostitute who performs sexual acts for money as a means of earning a living.

Following his trial, the appellant was convicted of rape and sentenced to 12 years' imprisonment. He now appeals his conviction on the primary ground that the conviction is unsafe as the trial judge failed to give the jury a good character direction. The appellant argues that a direction as to his character was necessary. The respondent, however, argues that the appellant never put his character in issue nor did he request such a direction from the judge.

Held (Jones, JA dissenting): Appeal allowed; conviction and sentence quashed. Submissions to be heard on the issue of a retrial.

per Barnett, P: By suggesting to M that she was a prostitute, the appellant put M's character in issue and as a consequence he put his own character in issue. The appellant also called his wife to give evidence on his behalf and questions were asked of his wife to elicit evidence of his character. This was sufficient to raise the issue of the appellant's good character and he was, therefore, entitled to a good character direction.

While there is a duty on defence counsel to raise his client's good character or to request the judge to give a good character direction on behalf of his client, where defence counsel fails in his duty the judge has an independent duty to satisfy himself as to the appropriateness of a good character direction. Where the credibility of the accused is in issue the trial judge is obliged at some stage prior to giving directions to the jury to inquire whether the accused has antecedents and a good character direction is appropriate. This duty on the judge is a part of ensuring that the accused has a fair trial. While the failure to give a good character direction does not automatically make a conviction unsafe, given the facts of the present case, a good character direction was required.

Brown v The State (2012) 82 WIR 418 applied

Chin v. R [2018] 3 LRC applied

Gregory August; Alwin Gabb v The Queen [2018] CCJ 7 (AJ) considered

R v McChleery [2019] EWCA Crim 2100 considered

Scott v R SCCrApp. No. 163 of 2012 applied

Serrano Adderley v R SCCrApp. No. 23 of 2014 considered

Teeluck and another v R (2005) 66 WIR 319 considered

Vasyli v R; R v Vasyli SCCrApp. No. 255 of 2015 applied

Per Crane-Scott, JA: The law is that the good character of the accused must be distinctly raised during the trial by: 1. direct evidence; 2. through witnesses called on his behalf or 3. through cross-examination of the Crown's witnesses. A good character direction is premised on evidence. It cannot be given in the abstract and without the necessary evidence of the defendant's good character having first been elicited before the jury or raised inferentially by the conduct of the defence during the trial. Defence counsel did not elicit evidence of the appellant's good character and, therefore, the judge was under no duty, in this case, to give a good character direction.

Notwithstanding my view that the judge was under no obligation to give a good character direction, the authorities suggest that regardless of who was at fault, on appeal the issue is whether the omission affected the safety of the trial or the conviction. For this to be determined the Court must assess and examine the strength of the evidence against the appellant and the nature of the issues which arose at the trial. The present case was one involving a clash of credibility between the case for the appellant and that of the virtual complainant; it was a classic case of “she said/he said”. Both limbs of the direction would have had probative significance before the jury. It cannot be said that a properly directed jury would have inevitably convicted in this case. A substantial miscarriage of justice has occurred.

Balson v. The State [2005] UKPC 2 mentioned

Birbal v. R SCCrApp No. 18 of 2011 distinguished

Brown v. The State (2012) 82 WIR 418 applied

Chin v. R [2018] 3 LRC 1 mentioned

France and Vassell v. The Queen [2012] UKPC 28 mentioned

Gilbert v. The Queen (2006) 68 WIR 323 distinguished

Michael Scott v. R SCCrApp No. 163 of 2012 mentioned

Moustakim v. R [2008] EWCA Crim 3096 mentioned

Peter Stewart v. The Queen [2011] UKPC 11 mentioned

R v. Aziz [1996] 1 AC 41 applied

R v. McChleery [2019] EWCA Crim 2100 mentioned

R v. Nigel Hunter [2015] 1 WLR 5367 mentioned

Teeluck v. The State [2005] 1 WLR 2421 applied

Uriah Brown v. The Queen [2005] UKPC 18 mentioned

Vye v. R [1993] 1 WLR 471 mentioned

Per Jones, JA: Irrespective of the cause of an appellant not receiving a good character direction, an appellate court should examine whether the safety of the conviction was affected thereby. Based on the totality of the evidence before the jury the safety of the verdict was not affected due to the absence of a good character direction as there was other evidence capable of supporting the conviction. That evidence included an accusation by LT to the appellant that he raped M. LT testified that the appellant gave no response to the accusation. There was also the complaint by M to LT alleging that she had been raped by the appellant. Having regard to the entirety of the evidence placed before the jury it cannot be said that the lack of a good character direction rendered the jury's verdict unsafe and unsatisfactory.

Barrow v The State [1998] AC 846 considered

Birbal v. R SCCrApp No. 18 of 2011 considered

Donald Parkes v Queen [1976] 1 WLR 1251 applied

Hall v. The Queen [1971] 1 WLR 298 applied

Peter Stewart v The Queen [2011] UKPC 11 considered

R v Cooper [1969] 1 All ER 32 distinguished

R v Horne [1990] Crim. L. R. 188 applied

R v Hunter (Nigel) [2015] 1 WLR. 5367 applied

R v Pope [2012] EWCA Crim 2241 considered

R v Rowton (1865) Leigh & Cave 520 applied

Vasyli v R; R v Vasyli SCCrApp. No. 255 of 2015 applied

Judgment delivered by the Honourable Sir Michael Barnett, P:

1 . The appellant was convicted on 11 October 2018 following a trial before Hilton, J for the offence of rape and sentenced on 28 March 2019 to twelve years' imprisonment. This is an appeal against that conviction. The appellant's Notice of Appeal was filed on 12 April 2019, one day out of time. He submits that the reason for his appeal being filed one day late was that on the final day for filing the Court closed early due to unforeseen circumstances. In the premises, I have treated the application for an extension of time as the hearing of the appeal. The primary ground of appeal is that the trial judge erred when he failed to give the appellant the benefit of a good character direction.

2 . In my judgment the appellant was entitled to the benefit of a good character direction and the judge erred in failing to give such a direction. I am satisfied that the failure affected the safety of the verdict and in the circumstances the appeal should be allowed.

The Facts

3 . On 11 October 2018 the appellant was convicted of rape and later sentenced to 12 years' imprisonment. He has appealed that conviction to this court.

4 . The female, whom I will identify as “M” was a family member of the appellant's wife and shared the same home as the appellant and his wife. All are persons of Haitian descent.

5 . M testified that on the morning of 9 November 2015 after the appellant's wife had left the home to take their children to school, the appellant entered her bedroom armed with a screwdriver and forced her to perform oral sex on him.

6 . Afterwards, again without her consent, he inserted his finger in her vagina and afterwards placed his tongue on her vagina. During this time, she was having her menstrual period. Immediately after the incident she informed a male friend of hers who then confronted the appellant and a scuffle ensued. Thereafter she reported the matter to the police and the appellant was arrested and charged.

7 . At all times the appellant insisted that the sexual activity was consensual. He denied that he had a screwdriver in his possession during the incident.

8 . His defence was that the sex was pursuant to an agreement that he would pay...