Thomas v R
| Jurisdiction | Caribbean States |
| Judge | de la Bastide,Nelson, J.A.,Saunders, J.A.,Bernard, J.A.,Wit, J.A. |
| Judgment Date | 04 April 2007 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. CR 3 of 2006 |
| Date | 04 April 2007 |
Caribbean Court of Justice
de la Bastide, President; Nelson, J.A.; Saunders, J.A.; Bernard, J.A.; Wit, J.A.
CCJ Appeal No. CR 3 of 2006
Mr C A Nigel Hughes, Mr Roger Yearwood and Mr Sean Cazabon for the appellant
Ms Jo-Ann Barlow and Ms Candace Raphael for the respondent
Criminal law - Buggery and common assault — Appeal against conviction and sentence — Direction to jury — Inculpatory statement — Judge misdirected the jury in dealing with the issue of whether the appellant had in fact made the self — inculpatory statement by suggesting to them that the arrest of the appellant before any identification by the virtual complainant was consistent only with the appellant having made the contested admission — Appeal allowed — Conviction and sentence overturned.
JUDGMENT Delivered by The Hon Mr Justice Michael de la Bastide: The appellant was convicted of buggery committed on a 14-year old boy on the 27 th March, 1999, and was sentenced to 10 years' imprisonment. He was also charged in relation to the same incident with common assault and was found guilty of that offence as well, but no penalty was imposed for it. The appellant's appeal to the Court of Appeal was dismissed. He then sought and obtained from this Court special leave to appeal his convictions. His appeal was heard by us on the 27 th July, 2006, and at the conclusion of the hearing we allowed the appeal and quashed the convictions and sentence. We promised then that we would give our reasons in writing later and we now proceed to do so.
Much of the prosecution's case was not disputed. The virtual complainant, a boy who was nearly 15 at the time of the offence, gave evidence that on the 27 th March, 1999, at about 7 p.m. he was running in a southerly direction on the western side of the main road which leads to the airport on the East bank of the Demerara River. He had just left his mother at her work-place at Rambarran's compound and was headed for his home in a village known as land of Canaan. He had taken off his shirt because he was feeling hot and had it slung over his shoulder. A police car painted in distinctive blue and white stripes which was travelling in a northerly direction, pulled up alongside him. The driver was a policeman in uniform. He was the only person in the car. He asked the virtual complainant what he was doing out so late without a shirt. He then got out of the car, searched the virtual complainant by ‘patting him down’ and ordered him to get into the car. The virtual complainant did as he was told and the policeman then drove off with him in the vehicle. The policeman eventually drove to a lonely spot near land of Canaan, where he proceeded forcibly to sodomize him. The policeman spread-eagled the virtual complainant on his belly first in the front and then in the back seat and penetrated him anally in both positions. Later the policeman dropped the virtual complainant off at the side of the road. From there the virtual complainant walked back to his mother's work-place and told her what had befallen him.
Eventually, both his parents took him to the Ruimveldt Police Station where a report was made. He was interviewed at that station by Assistant Superintendent Lawrence who then left with Sgt. Hinds and went to Grove Police Station where the appellant was stationed. ASP Lawrence there confronted the appellant with the allegation that he had buggered the virtual complainant.
The virtual complainant was examined on the 28 th March, at the Public Hospital in Georgetown, and the findings of the doctor confirmed his account of having been forcibly buggered. On an identification parade held on the 29 th March, 1999, the virtual complainant identified the appellant as the person who had buggered him.
None of these facts which I have so far stated was challenged by the appellant at any stage of these proceedings. The issue therefore, was not whether the offences charged had been committed but whether they had been committed by the appellant. The evidence on which the prosecution relied in order to establish the appellant's guilt, was comprised of three parts.
First, there was a body of circumstantial evidence which pointed to the appellant having committed the offences. It was common ground that on the night in question the appellant had left the Grove Police Station with another policeman, Sgt. Andrew Gibson, in a police-car PFF-6669, painted distinctively in blue and white stripes. That car was driven from Grove Police Station in a southerly direction along the airport road on the East bank of the Demerara River to Sgt. Gibson's home in land of Canaan, where Gibson was dropped off. The appellant (who was in uniform) then drove the police-car back to Grove Police Station along the same road. In the course of his return to the station, therefore, the appellant would have driven past the point on that road at which the virtual complainant was picked up by the unaccompanied police officer who subsequently raped him.
There was a discrepancy as to time, however, between the evidence of the virtual complainant and his mother on the one hand, and that of the police witnesses on the other, which will be explored later in greater detail.
There was also evidence of a number of other police cars having been in the area that night performing escort or traffic duties in connection with the scheduled departure of the President of Guyana from the airport.
Further, there was evidence from a police officer, Cpl. Gravesande, that at about 9 a.m. on the 28 th March, 1999, he found a perfume bottle containing a small amount of liquid in a pocket behind the driver's seat in motor-car PFF-6669. Another police officer, Inspector Deonarine, who put this bottle into evidence at the preliminary inquiry, testified that the liquid in the bottle was blue in colour and smelled of perfume. The evidence of the virtual complainant was that the policeman who raped him took “a blue perfume bottle” from between the two front seats and sprayed the car. Perfume bottles were not part of a general issue to police cars.
Finally, there was the fact that the appellant's physical appearance corresponded with the rather rudimentary description given by the virtual complainant of his assailant i.e. that he had ‘a low cut’ (a reference to his hair-cut), a round face and ‘big built’ (sic). One can safely infer from the failure of the appellant's counsel to draw attention to any discrepancy between that description and his client's physical appearance, that there was none.
The second limb of the prosecution's case was the identification of the appellant by the virtual complainant as the man who raped him, when the appellant was placed on an identification parade at the Brickdam Police Station on the 29 th March, 1999. For reasons which will be examined later in this judgment, this parade was with justification described by the trial Judge in his summing-up as ‘virtually useless’.
The third limb of the evidence against the appellant was an oral confession which ASP Lawrence testified the appellant made to him. Lawrence died before the trial and accordingly the deposition which he gave at the preliminary enquiry, was put into evidence at the trial.
ASP Lawrence first received a report of the sexual assault on the virtual complainant while at the Brickdam Police Station at about 12:45 a.m. on the 28 th March, 1999. After interviewing the virtual complainant at the Ruimveldt police station, he and Sgt. Hinds proceeded to the Grove Police Station. He there told the appellant that it was alleged that he had buggered the virtual complainant, and cautioned him. The appellant said he was going to tell him the truth and took him alone into the Traffic Office. There, Lawrence said, he cautioned him a second time, whereupon the appellant told Lawrence that after dropping Sgt. Gibson at his home, he had seen a “youth man” who gave him a “ill flingings” and “I dig he in”. In reply to Lawrence's query, the appellant confirmed that that meant that he had buggered the young man. Lawrence then took the appellant back into the Enquiries Office where they had left Sgt. Hinds, and asked him to repeat in Hinds' presence what he had just told him. This the appellant proceeded to do, but the appellant refused to have a written record made of what he had said. Immediately thereafter Lawrence made a note in the Station Diary of what had taken place. According to Lawrence, he then arrested the accused and took him to Brickdam where he was placed in custody.
At the trial, the appellant made an unsworn statement from the dock in which he denied having made the alleged or any oral admission to Lawrence. He said that he and Sgt. Hinds fetched Sgt. Gibson from his home so that the station could be handed over to Gibson. He further claimed that he was placed under close arrest after he had accompanied ASP Lawrence and Sgt. Hinds to Brickdam Police Station. He also stated that he had been taken later to the Georgetown Public Hospital to be medically examined.
In the notice of appeal that was filed in this Court, a large number of grounds were pleaded, but counsel for the appellant, Mr. Hughes, in his oral submissions to us, focused on just a few of these grounds. From the outset it appeared to us that there was one ground of appeal which had merit and after hearing argument on it from both sides, we were satisfied that the appeal must be allowed on that ground. It was that the Judge misdirected the jury in dealing with the issue of whether the appellant had in fact made the self-inculpatory statement alleged by Lawrence, by suggesting to them that Lawrence's action in arresting the appellant before...
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