Joseph Shane Merchant Appellant v The Queen Respondent [ECSC]
| Jurisdiction | Antigua and Barbuda |
| Judge | SATROHAN SINGH, J.A.,SATROHAN SINGH,Justice of Appeal,SIR VINCENT FLOISSAC,Chief Justice |
| Judgment Date | 24 June 1996 |
| Judgment citation (vLex) | [1996] ECSC J0624-2 |
| Docket Number | CRIMINAL APPEAL No. 2 of 1995 |
| Court | Court of Appeal (Antigua and Barbuda) |
IN THE COURT OF APPEAL
The Rt. Hon. Sir Vincent Floissac Chief Justice
The Hon. Mr. C.m. Dennis Byron Justice of Appeal
The Hon. Mr. Satrohan Singh Justice of Appeal
CRIMINAL APPEAL No. 2 of 1995
Mr Cosmos Charles for the Appellant
Miss Carol Malcolm DPP, Mr Thorn with her for the Respondent
On February 27, 1 995, the appellant was convicted by a Jury before Benjamin J of the offence of Indecent Assault on an indictment that charged him for the offence of Rape. He was sentenced to imprisonment for four years with hard labour. Before this Court he challenges the fairness of his conviction on grounds that involve issues pertaining to (1) an alleged irregularity during the deliberations of the jury (2) the reason for the need for corroboration (3) the alternative offence of Indecent Assault and (4) the reasonableness of the verdict. He has also appealed against his sentence. Learned Counsel for the appellant, after being enlightened by the Court that no "complaint" was made in this matter, abandoned his ground of appeal that involved that issue.
At the end of the addresses to the jury by both lawyers at the trial of this matter, the trial Judge did his summation to the jury and then invited them to retire and deliberate on their verdict. In that summation he inadvertently omitted to deal with the defence of the appellant. After some forty-four minutes of deliberations, the learned Judge recalled the jury and then for some twenty minutes dealt with the defence of the appellant. The jury again retired and after another two hours and nine minutes of deliberations returned a majority verdict of guilty of Indecent Assault.
Learned Counsel for the appellant describes what happened there as a material procedural irregularity and relied on the case ofTilman (1982) Cr L R 261 in support thereof. In my view in the context of this matter, Tilman is of no assistance. In Tilman, the substantial miscarriage of justice was that the defence of the appellant was never put by the Judge to the jury. In the instant matter, the appellant's defence was eventually left with the jury.
On this issue, the general principle of law as summed up byLord Widgery CJ in R v Davis 62 Cr. App. R. 164 at p.201, is that a jury may not when they have once retired to consider their verdict be given any additional evidence, any additional matter or material to assist them. They can ask for further directions on the evidence which has been given, but they cannot ask for anything new and it would be a material irregularity at the trial if a Judge were to allow them to have anything new. In Blackstone's Criminal Practice 1993 it is stated at p.1 301 that it might be proper for a Judge to give a supplementary direction where a matter canvassed at the trial had accidentally been omitted from the summing up but, when this is done, it must be carried out with utmost caution.
In the instant matter, the trial Judge, according to what is stated in the summing up, inadvertently (or accidentally) omitted to deal with the defence of the appellant. Having discovered his omission, he sought to do justice to the appellant's cause by recalling the jury and for the next twenty minutes direct them on the appellant's defence. The jury having already deliberated for some forty-four minutes then deliberated for another two hours or more, with the defence of the appellant being the last thing told to them. Given these circumstances, I do not see the injustice to the appellant's cause as suggested by Counsel for the appellant. The law permitted the Judge to rectify his inadvertent omission and that is what Benjamin J did. He did not give the jury any additional evidence, matter or material for their consideration de horswhat was already led at the trial. In my view, there was no miscarriage of justice. This ground of appeal therefore fails.
On the issue of corroboration, Mr. Charles for the appellant submitted that the Judge omitted to explain to the jury "why it is dangerous to convict on the uncorroborated evidence of the complainant in a sexual offence case in that such cases such allegations can easily be made and feigned" and argued that such an omission amounted to a material misdirection.
I do not find merit in this submission. In his summation to the jury on the issue of corroboration the learned Judge gave these directions to the jury:-
"For two reasons I must address you on corroboration. 1. The law says in sexual offences, it is dangerous and unsafe to convict the accused on the uncorroborated evidence of the virtual complainant, that is Emeka Roberts. Why in sexual offence? Because experience has shown that it is a charge that can be easily made, fabricated and difficult to refute." "The second reason I must warn you is that it is dangerous to convict the Accused on the uncorroborated evidence of Emeka Roberts in that she is a young girl, and experience has shown that there is a danger that fantasy may supplement genuine recollection. So, for these two reasons I must warn you. That it is dangerous and unsafe to convict on Emeka's evidence alone."
These directions in my view are in keeping with the reason for the corroboration rule as stated bySalmon LJ in R v Henry, R v Manning (1969) 53 Cr. App. R. 150 and restated by this Court in Anthony Pivotte v The Queen Criminal Appeal No. 11 of 1994 Grenada (unreported). That reason is so well-known that I do not propose to repeat it here. This ground of appeal also fails.
The indictment charged the appellant for the offence of Rape. The offence of Indecent Assault was not made a separate or alternative count in the indictment. The learned Judge in his summing up left with the jury for their consideration the alternative verdict of Indecent Assault. The record of...
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