[1] Roger Naitram [2] Lassell Punch [3] Leary Matheson Appellants v The Queen Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: BAPTISTE, J.A.,Justice of Appeal,Chief Justice,Hugh A. Rawlins,Janice George-Creque
• Judgment Date: 15 December 2010
• Judgment citation (vLex): [2010] ECSC J1215-3
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: HCRAP 2006/005 HCRAP 2006/006 HCRAP 2006/008
• Date: 15 December 2010

[2010] ECSC J1215-3

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Madam Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCRAP 2006/005 HCRAP 2006/006 HCRAP 2006/008

Between:

[1] Roger Naitram

[2] Lassell Punch

[3] Leary Matheson

Appellants

and

The Queen

Respondent

Appearances:

Jason Martin for Roger Naitram and Leary Matheson

Peyton Knight for Lassell Punch

Anthony Armstrong (Director of Public Prosecutions) for the Respondent

Criminal Appeal—Unlawful Carnal Knowledge—Unlawful sexual intercourse-Appeal against conviction and sentence—Caution statement inadmissible—Breach of the Constitution of Antigua and Barbuda—Corroboration—Corroboration warning-Direction on corroboration-Sentence imposed excessive—Joinder of accused—Defence case not properly put to jury— Misstatement of evidence—Defence contained in caution statement—Sentencing guidelines in sexual offence cases

Roger Naitram, Lassell Punch and Leary Matheson ("the appellants") were convicted on an indictment containing three counts of unlawful sexual intercourse with a twelve year old girl. Each appellant was sentenced to eight years imprisonment. The case against the appellants was not conducted on the basis of a joint enterprise. Instead, each count on the indictment referred to a specific appellant. Naitram was nineteen years old and Punch was a fifteen year old minor at the time of the offences. The prosecution's case against the appellants was that each one of them had sexual intercourse with the virtual complainant at different points in time in the space of about twelve hours. With respect to Punch and Matheson, the prosecution also relied on their caution statements. Each appellant has appealed his conviction and sentence. Punch appealed against conviction on the ground that the caution statement which was taken from him when he was detained was inadmissible as it was a breach of s. 5(3) of the Constitution of Antigua and Barbuda and against sentence on the ground that it was excessive. Naitram appealed against conviction on the following grounds: (1) that the learned judge erred in failing to exercise his discretion properly or at all in allowing each appellant to be tried with the other defendants charged with separate offences on the same indictment and (2) that the learned judge failed to properly direct the jury on corroboration. Naitram appealed against sentence on the ground that the trial judge erred in not decreasing the minimum sentence according to the degree by which the commission of the offence was mitigated by certain factors which include the age of the appellant and the absence of antecedents. Matheson appealed against conviction on the ground that the learned judge erred in his duty to put his defence properly or fairly or at all to the jury in the course of his summation.

Held:—dismissing the appeal of Roger Naitram against conviction and sentence, dismissing the appeal of Lassell Punch against conviction but allowing his appeal against sentence to the extent that it be varied to time served, and allowing the appeal of Leary Matheson against conviction thereby quashing his conviction and setting his sentence aside:

• 1. That the joinder of two or more accused in one indictment notwithstanding the absence of a joint charge against them is a matter of practice. Therefore, the Court of Appeal is entitled to dismiss an appeal against conviction advanced on the ground of joinder if there has been no miscarriage of justice especially where there has been a failure by the defence to object to the joint trial. The fact that the offences in the present case were related in time, nature and victim, with all witnesses being common in the case against each appellant, would gravitate towards the exercise of a discretion in favour of joinder.

  R v Assim [1966] 2 Q.B. 249 applied; R v Ferguson & Anor [2010] NICA 9 cited.

• 2. That the judge gave adequate direction on corroboration by warning the jury on several occasions that it is dangerous to convict on the sole testimony of a virtual complainant and by emphasizing that the virtual complainant was a child. Furthermore, the judge reminded the jury that there was no corroboration in the case and went on to tell them that if they believed the virtual complainant's evidence, they could convict. As indicated in Gilbert the question on whether to give a corroboration warning is a matter of discretion for the trial judge and it will only be in clear and exceptional cases that an appellate court will feel justified in interfering with the exercise of this discretion. Having decided that it was an appropriate case to give a corroboration warning, the strength and terms of the warning were matters to be determined by the trial judge, who was in a position to assess the flow of evidence, the firmness of the testimony of the virtual complainant, the quality of the defence proffered as well as other aspects of the trial.

  R v Rennie Gilbert [2002] UKPC 17 applied; Kyon Frederick v The Queen HCRAP 2006/008 distinguished.

• 3. In sexual offence cases, the question of fabrication and lies is the subject matter of the corroboration warning and in that regard, the learned judge was not off the mark when he stated that the underlying reason for the corroboration warning "is that people tell lies for different reasons, children included".

  R v Rennie Gilbert [2002] UKPC 17 applied.

• 4. That there was no error in principle on the part of the learned trial judge in imposing an eight year sentence on the first appellant and neither was this sentence manifestly excessive. As a result there are no proper grounds for departing from the sentencing guidelines laid down by this Court. The Court will not interfere with the discretion of the sentencing court on the ground that it might have passed a different sentence. While the court is mindful of the general undesirability of imprisoning young offenders, sometimes even in the case of young offenders because of the serious nature of the offence a term of imprisonment will normally be the appropriate disposal.

  Attorney General's Reference No. 29 of 2008 [2008] EWCA Crim. 2026 cited; R v Newsome, R v Browne [1970] 2 Q.B. 711 cited.

• 5. That the exclusion of the second appellant's caution statement does not necessarily lead to the quashing of his conviction. In the absence of the caution statement the sole evidence against the appellant would have come from the virtual complainant and the learned judge gave the jury adequate directions on how to treat her evidence. It was a matter for the jury whether or not to believe her evidence. The court has to weigh the public interest as well as that of the individual who has been exposed to an illegal invasion of his right in securing relevant evidence bearing on serious crimes so that justice can be done.

  Mohammed (Allie) v Trinidad and Tobago [1999] 2 A.C. 111 cited.

• 6. That the major inconsistencies in the virtual complainant's evidence referred to by counsel for the second appellant did not go to the heart of the matter. On the critical issue of sexual intercourse, the virtual complainant's evidence was unshaken. As judges of fact, the members of the jury were entitled to accept that evidence and act upon it, which they did by their finding of guilt. Reference to lurking doubt is just one way in which an appeal court addresses the fundamental question of whether or not the conviction is safe.

• 7. That the learned judge erred in not giving any or sufficient weight to the facts that the second appellant was only fifteen years old at the time of the offence and only a first time offender. This was an appropriate case to depart from the starting point of eight years identified in the guidelines. Having taken the guidelines into account the sentencing judge is enjoined to look at the circumstances of the individual case, particularly the aggravating and mitigating factors that may be present and impose the sentence which is appropriate. Therefore a sentencing judge can depart from the guidelines if adherence would result in an unjust sentence. Where the particular circumstances of a case may dictate deviating from the guidelines, it would be instructive for the sentencing judge to furnish reasons for so departing.

  Millberry v R [2002] EWCA Crim. 2091 applied.

• 8. That the learned judge failed in his duty to put the third appellant's defence which was contained in his caution statement, properly to the jury. This failure was made worse by a critical misstatement of the evidence. The judge's responsibility to summarise the main points made by a defendant in his caution statement is not diminished or made redundant by the fact that the jury would have the caution statement with them upon their retirement. The effect of this failure of the trial judge to put the appellant's defence fairly and properly to the jury renders his conviction unsafe.

  R v Curley and Cadwell [2004] EWCA Crim 2395 applied.

BAPTISTE, J.A.

1 On 6 ^th July 2006 Roger Naitram, Lassell Punch and Leary Matheson ("the appellants") were convicted on an indictment containing three counts of unlawful sexual intercourse with a girl under the age of fourteen. The incidents occurred in June 2004. On 20 ^th July 2006 each appellant was sentenced to eight years imprisonment. They have appealed their conviction and sentence. The case against the appellants was not conducted on the basis of a joint enterprise. Each count on the indictment referred to a specific appellant. The prosecution's case depended on the evidence of the virtual complainant who was twelve years old at the time of the offences. With respect to Punch and Matheson, the prosecution also relied on their caution statements.

2 I will now consider the appeal of Punch. In brief, the prosecution's case is that the virtual complainant...