Rukeithso Richardson v R

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 14 February 2020
• Neutral Citation: BS 2020 CA 16
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCrApp & CAIS No. 265 of 2018
• Date: 14 February 2020

IN THE COURT OF APPEAL

Before:

The Honorable Mr. Justice Isaacs, JA

The Honorable Madam Crane-Scott, JA

The Honorable Mr. Justice Jones, JA

SCCrApp & CAIS No. 265 of 2018

Between

Rukeithso Richardson

Appellant

and

Regina

Respondent

APPEARANCES:

Ms. Marianne Cadet, with Ms. Brendalee Rae, Counsel for the Appellant

Mr. Patrick Sweeting, with Ms. Destiny McKinney, Counsel for the Respondent

Alexander Williams v. Regina SCCrApp No. 155 of 2016 Considered

Bhola v The State of Trinidad and Tobago [2006] UKPC 9 Mentioned

Brown v The State of Trinidad and Tobago [2012] UKPC 2 Mentioned

Dennis Reid v. The Queen [1990] A.C. 343 Considered

Donna Vasyli v Regina SCCrApp. No. 255 of 2015 Considered

Jagdeo Singh v The State of Trinidad and Tobago [2006] 1 WLR 146 Mentioned

Michael Scott v Regina SCCrApp No. 163 of 2012 Mentioned

Mikiko Black v Regina SCCrApp No. 40 of 2014 Mentioned

Regina v Makanjuola; Regina v Easton [1995] 1 WLR 1348 Considered

R v McChleery [2019] EWCA Crim 2100 Mentioned

Sherry v The Queen [2013] UKPC 7 Considered

S.S. v Regina [2017] 2 BHS J. No. 117 Considered

R v Hunter [2015] EWCA Crim 631 Mentioned

Teeluck and Another v Regina [2005] UKPC 14 Considered

The Attorney General v Omar Chisholm MCCrApp No. 303 of 2014 Considered

Criminal appeal — Rape — Verdict Unsafe and Unsatisfactory — Character Direction — Corroboration Direction

The appellant was charged with two (2) counts of unlawful sexual intercourse with a dependent between 9 October 2015 and 12 October 2015 and between 16 August 2015 and 31 August 2015. On 30 June 2017 the appellant was found guilty, unanimously, on both counts and was sentenced to seven (7) years on each count to run consecutively with effect from date of conviction. He appealed his conviction on the grounds that the trial judge erred when she failed to give good character direction and adequate corroboration direction, the defence counsel's conduct and failure to follow appellants instructions affected his ability to have a fair trial and that the verdict was unsafe and unsatisfactory and his sentence was unduly harsh and severe.

Held:- Appeal allowed. Sentences and convictions quashed.

It is clear that the issue of the appellant's character had been raised in the trial. The appellant gave evidence on his behalf in the trial and was therefore “entitled to the benefit of a good character direction from the judge when summing up to the jury.” In fact, this was a case where the invidious mention of the appellant's purported abuse of child A's mother and his alleged infidelity required the judge to bring some semblance of balance to the trial giving the good character direction to the jury. By so doing, the judge would ensure that the trial was fair.

Another reason good character direction was necessary was that the extraneous evidence that was led before the jury, for example, the domestic abuse, the appellant's infidelity and incidents of sexual contact with Child A that fell outside the charges laid against him. The respondent's case against the appellant relied solely on the testimony of Child A as there was no corroborating witnesses to support her evidence; nor was there any forensic evidence purporting to implicate the appellant in the offences. The appellant denied Child A's allegations therefore the trial was a contest of who was telling the truth. However, his chances of convincing the jury that he was being truthful were severely hampered due to the judge's failure to give and explain to the jury both aspects of the good character direction.

REASONS FOR DECISION

Mr. Justice Isaacs, JA

Reasons delivered by the Honourable

1 On 12 December 2019, we allowed the appeal of the appellant, quashed his convictions and set aside his sentences. Further, we made no order for a retrial; and promised to provide our reasons for doing so. We provide them now.

2 The intended appellant was convicted of two counts of unlawful sexual intercourse with a dependent on 30 June 2017; and was sentenced on 24 November 2017, to seven years (7) imprisonment on each count. The sentences were to run consecutively.

3 He sought to appeal his conviction having filed his appeal on 22 November 2018; but his appeal was out of time. Thus, he required the leave of the Court to appeal. He applied for an extension of time within which to appeal. His grounds of appeal initially included the failure of the trial judge to give a good character direction to the jury and that the virtual complainant tested positive for a sexually transmitted disease, gonorrhea, but he was not found to be suffering from that disease. He had amended his grounds as follows:

“The appellant relies on the following grounds of appeal, namely:-

• (1) The learned judge erred when he did not give a good character direction in reference to the appellant to commit the offence.

• (2) That the sentence is unduly harsh and severe.”

4 However, on 28 October 2019, he filed a Re-Amended Affidavit that listed five grounds of appeal:

• “(1) The learned judge erred when she failed to give a good character direction. The relevance of such a direction had to do with credibility and propensity there was clear evidence of imputations of bad character in this trial brought out through the Crown and defense counsel;

• (2) The learned judge erred in law when he failed to give an adequate corroboration direction having regard to the circumstances;

• (3) That defence counsel conduct and failure to follow the instructions of the appellant affected his ability to have a fair trial;

• (4) The verdict is unsafe and unsatisfactory having regard to the circumstances of the case;

• (5) That the sentence is unduly harsh and severe.”

5 Inasmuch as we granted the intended appellant leave to appeal, ultimately, all further references to him and the intended respondent will omit the word “intended”.

The Extension of Time Application

6 In Alexander Williams v. Regina SCCrApp No. 155 of 2016, Allen, P wrote at paragraph 11:

• “11. The power to grant an extension of time within which to appeal to the Court of Appeal is given by rule 9 of the Court of Appeal Rules 2005. It is settled that in exercising its discretion to extend time, the Court considers four factors: the length of the delay; the reasons for the delay; the prospect of success of the intended appeal; and the prejudice, if any to the respondent.”

7 See also The Attorney General v Omar Chisholm MCCrApp No. 303 of 2014.

8 The appellant was out of time by almost twelve months but it appeared that he may have prepared a Criminal Form No. 1 within the time limited for appealing; but the form was not forwarded to the Court by the Bahamas Department of Correctional Services (“BDOCS”) timeously thereby necessitating the preparation and submission of a new form. We considered the four factors and concluded that the only one of real concern to us was the prospect of success because, notwithstanding the length of delay, a reasonable explanation for the delay was proffered; and we found no prejudice inured to the respondent if the appeal was allowed to go forward.

Prospect of Success

9 In Sherry v The Queen [2013] UKPC 7 Lady Hale delivered the decision of the court; and at paragraph 14 said, inter alia:

“The Board accepts that the merits of any proposed appeal are relevant to an application to extend time. At the very least, it must be shown that there is some merit in the proposed appeal before a court will consider whether the delay can be excused. If the appeal has no prospect of success, then it is in no-one's interests to allow it to proceed, however short or understandable the delay.”

Ground 1- Good Character Direction

10 The appellant's first ground was that the trial judge failed to give the jury a good character direction which has two aspects to it, to wit, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged. The trial judge's failure rendered the trial unfair.

11 Counsel for the respondent, Ms. McKinney, submitted that it was true that the trial judge did not give a good character direction to the jury; but given the strength of the prosecution's evidence against the appellant, the jury would have returned the same verdict. Moreover, she contended, that the appellant's Counsel did not raise the issue of good character during the trial.

12 Ms. McKinney referred us to the authorities of Mikiko Black v Regina SCCrApp No. 40 of 2014 and Michael Scott v Regina SCCrApp No. 163 of 2012, to illustrate that the absence of a good character direction where the appellants did not have a criminal record did not necessarily make the verdicts of guilty unsafe.

13 Additionally, in the Privy Council case of Teeluck and Another v Regina [2005] UKPC 14, Lord Carswell stated at paragraph 33(v):

• “(v) The defendant's good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross-examination of prosecution witnesses: Barrow v the State [1998] AC 846 at 852, following Thompson v R [1998] AC 811 at 844. It is a necessary part of counsel's duty to his client to ensure that a good character direction is obtained where the defendant is entitled to it and likely to benefit from it. The duty of raising it is to be discharged by the defence, not by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v R, ibid.”

14 Ms. McKinney submitted that it is only in exceptional cases that the lack of a good character direction would make the verdict unsafe in any event.

15 She acknowledged that the appellant's counsel elicited good character evidence from Child A's mother when she told the court...