Errol Smith v the Queen

IN THE COURT OF APPEAL .. STo VINCENT High Court Cl1.mina.l Appeal No. 6 of' 1972 Appellant ERROL SMITH Between: and R~sponden t THE QUEEN Bef'ore: The HQnourable the Chief' Justice The Honourable Mr. Justice Cecil Lewis The Honourable Mr. Justice st. Bernard G. Isaacs f'or appellant A.T. Warner Q.C. (Attorney General), Miss M. Joseph with him, f'or respondent 1972, May 17 JUDGMENT The judgment of' the eourt was delivered by I.EWIS, C.J • The Court is indebted to Mr. Isaacs f' or the arguments which he has put f'orward in this case today, and, although some of' his submissions have not met with f'avourable reception the Court nevertheless bears in mind that leave was granted to the appellant and that learned counsel quite readily accepted the Courtts assignment to argue the case. The appellant was convicted on the 18th Fe~ruary, 1972 of' the of'f'ence of' rape in respect of' a young woman named Marie Mc Kie. It is not necessary to go into all the details of' what was a rather unsavoury incident. '1.he young woman said that she was gping home carrying a bag with some bread in it and she f'el~ a man, who turned out to be the appellant, hold her by the throat. He was wearing only a bathsuit and he pulled her into the bush, r'ather high lemon grass bush, threw her to the ground and had sexual intercourse with her twice against her consent. She was at the time having her period and the two panties which he, according to her evidence f'orcibly removed f'rom /her •••••••••••••

t 2 " her body and the pad which she was wearing were all satu~8.j,§<t wi th blood which the laboratory technician said might be menstrual blood. When she came out of the bush she was seen by a witness, J~queline James, to be crying, her dress was rumpled, there were bits of' grass in her hair and Jacqueline James inquired She then made a report to of her why she was crying. , '(" Jacqueline James about the incident Which had occu7ed between herself and the appellant. Subsequently, she made a report to a woman police who accompanied her back to the scene as well as another corporal of police, and one of' the panties and the pad \vas f'ound there. Certain aspects of her conduct could be considered as somewhat unusual for a person who had been assaulted in the way that she says she was. For example, it was elicited from her in cross-examination that at one stage after she had dressed, there were people passing and that at the instance of the appellant she remained in the bush. It was also elicited f'rom her that in the course of' the scuffle or struggle whatever took place - she lost her watch and that the appellant looked f'or it and f' ound it and gave it to her. These aspects of her conduct - her delay in leaving the scene after the incident - were lef't to the jury on theq uestion of' consent, and the judge quite properly pointed out that one explanation might be that she was still under f'ear of' the appellant, because she said that on more than one occasion when she atten.pted to scream out he threatened, to use her words, "to rar.l a stick down my throat". At an identif'ication parade which took place on the f'ollow­ ing day she identif'ied the appellant as the person who had raped her. Tne police went in search of' the aIPellant after they received the report from this girl, and when he was told of' /the ••••••••• 00 •••

- 3 the complaint his first reply was that he knew n~thing at all "about this incident. Subsequently, after he had been identi­ fied by the prosecutrix and his bathing trunk had been found at his house blood-stained, a nd after some prolonged question- He said that he knew the ing by the police, he gave a story. girl before and that on the day in question he saw her pass near to the Post Office; he called out to her to wait and she prompt­ ly began to run aWay from him, but he followed her J met her talking to two girls by the Preparatory School and on her seeing him she ran off again, but she fell in the grass and he got on top of· her and asked her to l:Iave sex with him. Sne refused, but he led her into the bush and there he began to disrobe her. He says that at that stage she herself took off her panties. The rest of his evidence amounts to a suggestion that she acquiesced, having at first refused she eventually ac~uiesced, in having sex~a1 intercourse with him. At the trial he gave evidence to the same effect. The learned Judge gave the jury a proper warning about the need for corroboration and he pointed out to them some mattera which might be considered as corroboration. It is in respect of this direction that the first ground of appeal was taken. The Judge told the jury that the f act that when the girl came out of the bush she WaS seen to be crying was capable of amount­ 1ng to corroboration. Learned counsel for the appellant has submitted that this was wrong, that the crying which took place was part and parcel of the complaint which was made to Jacqueline. The Court is unable to accept 1:bat submission because she was seen to be crying before she made t hat complaint} and, indeed, the evidence is thatit is the fac t t hat she was crying that caused Jacqueline to ask her why she was crying. Then, the Judge said that the evidence that the accused himself gave as to her running after he had called her is evidence which is ca2aole 01 being corroboration. Here again.. le'srned counsel first s\.1bmi tted that /that

.. - 4 that evidence if taken with the rest of the appellant t s evi­ dence that she took off her panties and so on could not be capable of amounting to corroboration; but he quite frankly conceded that it was a matter for the jury to say how much of hiS evidence they accepted, and if' they accepted that he did run af'ter her and that, according to the statement that he gave, she fell down and he got on top of her, and I' ejected the rest of' his evidence about her acquiescing, then this would b e very strong When one adds to that fact the fact that corroboration indeed. her watch came off of her wrist, although the cold print does not indicate that there was any violent struggle between these parties, it is obvious that there must have been a struggle during the course of which this watch came off' of the girl t a wrist. The judge also told the jury that the evidence that there was grass in the girl's hair migut be corroboration. Well, here the Court thinks the Judge was in error because obviously even if' she had consented she might ver~r well have grass in her hair having regard to the place where the incident occurred. The sort of corroboration which was required here was corro­ boration of her statement that she did not consent, because the appellant having eventually put himself on the scene merely put· in issue the question of consent • He said that he did have intercourse with her but that she consented; that was virtually his. def'ence and the Court feels that these 0 ther matters to which we have ref'erred were capable of' amounting to corroboration 0'1 this issue. There is alao the fact that when the 60mplaint was first put to him he denied that he knew anything about the matter. This denial was an admitted lie because he sUbsequently admitted to having had intercourse with her, and that lie, it is well known, may also amount to corroboration of' the girlts story. TRe other ground of' appeal was that the verdict of the jury Iwas o.~ .. ooo •••••••

I" 5 .. was unsa~e and unsatisfactory. Learned counsel referred to the portit)n of the evidence - in fact, he read from the judge' 8 summing up where tl':e jUl ge particularly drew the a ttention o~ the jury to those portions of the woman's story Wilic~l he told them they might regard as unusual. But the jury had to look at at the wh'lle of the evidence, her evidence that she wes unwill­ ing, his evidence which indicated that she was unwilling, the loss of the watch, the fact that when she came out she was crying, that she persisted in her reports which she made to various people including the police and to balance those facts against what might be considered as unus1lal aspects ot: her conduct. They must have corre to the conclusion that they believed her story substantially, for they found the appellant gu~lty, and the Court sees no reason to interfere wi th that verdict. For these reasons the aTIpeal is dismissed. J: Allen Lewis CHIEF JUSTICE

IN THE COURT OF APPEAL ST. VINCENT High Court Cl1.mina.l Appeal No. 6 of' 1972 ERROL Appellant Between: SMITH and THE QUEEN R~sponden t Bef’ore: The HQnourable the Chief' Justice The Honourable Mr. Justice Cecil Lewis The Honourable Mr. Justice st. Bernard G. Isaacs f’or appellant A.T. Warner Q.C. (Attorney General), Miss M. Joseph with him, f’or respondent 1972, May 17 JUDGMENT The judgment of' the eourt was delivered by I.EWIS, C.J • The Court is indebted to Mr. Isaacs f' or the arguments which he has put f’orward in this case today, and, although some of' his submissions have not met with f’avourable reception the Court nevertheless bears in mind that leave was granted to the appellant and that learned counsel quite readily accepted the Courtts assignment to argue the case. The appellant was convicted on the 18th Fe~ruary, 1972 of' the of’f’ence of' rape in respect of' a young woman named Marie Mc Kie. It is not necessary

to go into all the details of’ what was a rather unsavoury incident. ‘1.he young woman said that she was gping home carrying a bag with some bread in it and she f’el~ a man, who turned out to be the appellant, hold her by the throat. He was wearing only a bathsuit and he pulled her into the bush, r’ather high lemon grass bush, threw her to the ground and had sexual intercourse with her twice against her consent. She was at the time having her period and the two panties which he, according to her evidence f’orcibly removed f’rom /her ••••••••••••• t 2 ­ her body and the pad which she was wearing were all satu~8.j,§<t “ wi th blood which the laboratory technician said might be menstrual blood. When she came out of the bush she was seen by a witness, J~queline James, to be crying, her dress was rumpled, there were bits of' grass in her

hair and Jacqueline James inquired of her why she was crying. She then made a report to , ‘(“ Jacqueline James "about the incident Which had occu7ed between herself and the appellant. Subsequently, she made a report to a woman police who accompanied her back to the scene as well as another corporal of· police, and one of’ the panties. and The pad \vas f’ound there. Certain aspects of her conduct could be considered as somewhat unusual for a person who had been assaulted in the way that she says she was for example, it was elicited from her in cross-examination that at one stage after she had dressed, there were people passing and, that at the instance of the appellant she remained in the bush. It was also elicited f’rom her that in the course of’ the scuffle or struggle whatever took place – she lost her watch and /that the appellant looked f’or it and f’ ound it

and gave it to her These aspects of her, conduct – her delay in leaving the scene after the incident – were lef’t to the jury on theq uestion of consent, and The judge quite properly pointed out that one explanation might be that she was still under f’ear of’ the appellant, because she said that on more than one occasion when she atten.pted to scream out he threatened, to use her words, to rar.l a stick down my throat”. At an identif’ication parade which took place on The f’ollowing day she identif’ied the appellant as the person who had raped her. Tne police went in search of the aIPellant after they received the report from this girl, and when he was told of' the ••••••••• 00 ••• 3 the complaint his first reply was that he knew n~thing at all about This incident. sUbsequently after he had been identified by the prosecutrix and his bathing trunk had been found

at his house blood-stained, a nd after some prolonged questionHe said that he knew the ing by the police, he gave a story. girl before and that on the day in question he saw her pass near to the Post Office; he called out to her to wait and she prompt­ ly began to run aWay from him, But he followed her J met her talking to two girls by the Preparatory School and on her seeing him she ran off again, but she fell in the grass and he got on top of her and asked her to l:Iave sex with him. Sne refused, but he led her into the bush and there he began to disrobe her He says that at that stage she herself took off her panties. the rest of his evidence amounts to a suggestion that she acquiesced, having at first refused she eventually ac~uiesced, in having sex~a1 intercourse with him. At the trial he

gave evidence to the same effect. The learned Judge gave the jury a proper warning about the need for corroboration and he pointed out to them some mattera which might be considered as corroboration. It is in respect of this direction that the first ground of appeal was taken. The Judge told the jury that the f act that when the girl came out of the bush she WaS seen to be crying was capable of amount­ 1ng to corroboration. Learned counsel for the appellant has submitted that this was wrong, that the crying which took place was part and parcel of the complaint which was made to Jacqueline. The Court is unable to accept 1:bat submission because she was seen to be crying before she made t hat complaint} and, indeed, the evidence is thatit is the fac t t ha t she was crying that caused Jacqueline to ask her why she was crying. Then, the Judge said

that the evidence that the accused himself gave as to her running after he had called her is evidence which is ca2aole 01 being corroboration. Here again.. le’srned counsel first s.1bmi tted that /that 0 •••••••••••• .. – 4 that evidence if taken with the rest of the appellant t s evidence that she took off her panties and so on could not be capable of amounting to corroboration; but he quite frankly conceded that it was a matter for the jury to say how much of hiS evidence they accepted, and if’ they accepted that he did run af’ter her and that, according to the statement that he gave, she fell down and he got on top of her, and I’ ejected the rest of’ his evidence about her acquiescing, then this would b e very strong corroboration When one adds to that fact the fact that indeed. her watch came off of her wrist, although the cold print

does not indicate that there was any violent struggle between these parties, it is obvious that there must have been a struggle during the course of which this watch came off’ of the girl t a wrist. The judge also told the jury that the evidence that there was grass in the girl’s hair migut be corroboration. Well, here the Court thinks the Judge was in error because obviously even if’ she had consen ted she might ver~r well have grass in her hair having regard to the place where the incident occurred. The sort of corroboration which was required here was corroboration of her statement that she did not consent, because the appellant having eventually put himself on the scene merely put· in issue the question of co nsent • He said that he did have intercourse with her but that she consented; that was virtually his. def’ence and the Court feels that these 0 ther matters to which

we have ref’erred were capable of’ amounting to corroboration 0’1 this issue. There is alao the fact that when the 60mplaint was first put to him he denied that he knew anything about the matter. This denial was an admitted lie because he sUbsequently admitted to having had intercourse with her, and that lie, it is well known, may also amount to corroboration of’ the girlts story. TRe other ground of’ appeal was that the verdict of the jury Iwas o.~ .. ooo ••••••• I” 5 .. was unsa~e and unsatisfactory. Learned counsel referred to the portit)n of the evidence – in fact, he read from the judge’ 8 summing up where tl’:e jUl ge particularly drew the a ttention o~ the jury to those portions of the woman’s story Wilic~l he told them they might regard as unusual. But the jury had to look at at the wh’lle of the evidence, her evidence that she wes unwilling, his evidence

which indicated that she was unwilling, the loss of the watch, the fact that when she came out she was crying, that she persisted in her reports which she made to various people including the police and to balance those facts against what might be considered as unus1lal aspects ot: her conduct. They must have corre to the conclusion that they believed her story substantially, for they found the appellant gu~lty, and the Court sees no reason to interfere wi th that verdict. For these reasons the aTIpeal is dismissed. J: Allen Lewis CHIEF JUSTICE