Steve Luciano Bain aka Cano v The Director of Public Prosecutions
|Court of Appeal (Bahamas)
|Mr. Justice Isaacs, JA
|15 November 2022
|BS 2022 CA 155
|SCCrApp. No. 51 of 2022
BS 2022 CA 155
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
The Honourable Sir Brian Moree, JA
SCCrApp. No. 51 of 2022
IN THE COURT OF APPEAL
Criminal appeal — Incest — Indecent assault — Minor child — Good character direction — Vye direction — Mushtaq direction — No case submission — Hearsay evidence — Confession — Turnbull warning — Sections 4, 13 & 17 of the Sexual Offences Act — Sections 38, 39(1), (2)(e) and 159 of the Evidence Act
The appellant was charged was incest and indecent assault contrary to section 13(1)(a) and section 17(1)(a), respectively, of the Sexual Offences Act. The particulars are that sometime in December 2019, while at New Providence, the appellant did have unlawful sexual intercourse and indecently assault P.W., the appellant's 6 year old niece. On 31 August 2021, after a trial in the Supreme Court, the appellant was found guilty on both counts. The appellant was sentenced to 9 years imprisonment on the charge of incest and 3 years on the charge of indecent assault minus his time spent on remand. Both sentences are to run concurrently. The appellant now appeals his conviction and sentence.
The appellant appeals his conviction on grounds relative to a good character direction, Vye direction, Mushtaq direction, the Judge's rejection of his no case submission, admission of hearsay evidence, the Judge's failure to give a Turnbull warning, and the Judge's direction on the appellant's confession. The appellant further appeals his sentence on the basis that it is unduly severe.
Held: The Appeal is dismissed; convictions and sentences are affirmed.
A defendant must distinctly raise his good character either through his own evidence, on oath or affirmation, or by witnesses called on his own behalf; and that evidence must disclose that he has a good character in the “legal sense”. The Court is satisfied that the appellant was not entitled to a good character direction on both limbs of credibility and propensity even though he went into the witness box and testified during the trial.
In relation to the complaint on the Mushtaq direction, in the Court's view, the Judge gave an adequate direction on the issue of voluntariness of the record of interview.
The Court is satisfied that the Judge did not err when she did not accede to the no case to answer submission made on the appellant's behalf; nor did she err when she did not remove the first count, incest, from the jury's consideration because evidence had been adduced sufficient for the jury to consider.
Regarding the appellant's claim of admission of hearsay evidence, the Court is of the view that Dr. Carroll used her report merely as an aide memoire.
Relative to the Turnbull warning, there was evidence that the appellant admitted to placing his penis on the virtual complainant's belly and leg. This was sufficient evidence for the jury to conclude that the appellant was the person who had done acts to the virtual complainant. Further, the appellant did not challenge the identification of himself as the “uncle” mentioned by the virtual complainant as being mistakenly made.
Considering the appellant's complaint on sentence, the Court is of the view that the Judge did not take into consideration anything she ought not to have, nor did she fail to consider anything she should have. It cannot be said that the appellant's sentences are unduly severe or harsh.
No. 139 of 2016 considered
No. 255 of 2015 considered
Keith Billam and Others Appeals and Applications considered
No. 13 of 2006 considered
The State (Trinidad and Tobago) considered
No. 224 of 2016 mentioned
No. 4 of 2007 considered
Ms. Myra Russell, Counsel for the Appellant
Mr. Kendall Carroll III, Counsel for the Respondent
Judgment delivered by The Honourable
. The appellant was convicted on 31 August 2022, of incest, contrary to section 13(1) of the Sexual Offences Act (“the SOA”) and indecent assault, contrary to section 17 of the SOA, in a jury trial before Madam Justice Jeanine Weech-Gomez (“the Judge”).
. On 1 April 2022, the appellant was sentenced to nine years imprisonment for incest and three years imprisonment for indecent assault. The sentences are to run concurrently. On 1 April 2022, he lodged a Notice of Appeal; but on 17 July 2022, he filed an Amended Notice of Appeal outlining the following grounds:
“1. That the learned judge failed to give a good character direction.
2. That the learned judge erred in law and in fact when she failed to give a Vye Direction.
3. The verdict is unsafe as the failure of the judge to give a good character direction did affect the safety of the verdict.
4. That the learned judge erred in law and in fact when she failed to give a Mushtaq Direction.
5. That the learned judge erred when she rejected the appellant's no case submission.
6. The learned Judge erred when she failed to adequately direct and assist the jury in relation to the medical evidence, which amounted to hearsay, where this was the primary evidence of the prosecution.
7. The Learned Judge erred in the fact and law by not removing count 1 from the Jury.
8. The verdict is unsafe and unsatisfactory having regard to the circumstances of the case.
9) Whether the learned judge erred in law and in fact when he failed to give a Turnbull Warning.
10) The learned judge erred in law and in fact when she failed to direct the jury in regards to the confession.
11) The sentence is unduly harsh and/or severe.”
. It was alleged that sometime in December 2019, the appellant rubbed his penis on his niece's vagina and on another occasion, indecently assaulted her. I note that the appellant was charged initially with incest only, but the indictment was amended at the commencement of his trial to include the indecent assault charge.
. Both counts allege that the incest and indecent assault occurred in December 2019. The virtual complainant (“the VC”) testified remotely but provided little details of the events that grounded the two charges. Her mother, Megan Strapp (“Ms. Strapp”), provided the bulk of the details. She told the jury in response to a question during evidence in chief:
“Q. Okay. And what, if anything, happened on the 26th of May, 2020?
A. Me and my daughter was currently doing chores around the house and cooking. And ‘round, it was during lunch time when we was making the lunch together, I started to ask my daughter questions, like, “if anybody touches your private part” and she stated her uncle.
Q. She stated what, sorry?
A. She stated her uncle. She stated, yes. Her uncle.
Q. And did you observe your daughter doing anything, at this time?
A. Yes. She was pointing at her private part.
Q. I'm sorry?
A. She was pointing at her private part.” (At pages 313–4 of the transcript)
. Ms. Strapp also gave an indication of when the offence(s) may have happened, that is, at a FNM Christmas party near the FNM headquarters. She admitted that she suggested the offence allegedly occurred at the FNM Christmas party. Ms. Strapp also identified the “uncle” that the VC mentioned as the appellant.
. The appellant testified on his own behalf and was questioned extensively by Ms. Russell and in cross-examination by Mr. McHardy. He also called witnesses in his defence. Nonetheless, he was convicted on both counts. He launched an appeal against his convictions and sentences.
. I pause here to note the appellant's response to questions posed by Ms. Russell at page 787 of the transcript:
“Q. Did you place your penis inside Peyton Whitfield?
A. On her.
Q. Did you tell Sergeant 3273 Jewel Gray that you placed your penis inside Peyton Whitfield?
A. On her.”
. So the jury were informed by the appellant that he had placed his penis on the VC.
. Inasmuch as grounds 1 and 2 relate to the issue of good character, I propose to address them together.
. Ms. Myra Russell, Counsel for the appellant, contended that in the course of the trial, the matter of the appellant's good character arose. She adverted our attention to the evidence elicited from Mr. Wentworth Newry, a Defence witness, as he was being questioned by the jury:
“Madam foreman: Yes ma'am.
What type of person is Steve Bain, in your opinion?
The Witness: To me, I would say he's a simple-minded — what we would say like he's a simple person.
Madam Foreman: When you say simple, what does that mean?
The Witness: I...
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