Glen Richardson v R
| Jurisdiction | Anguilla |
| Judge | THOMAS, J.A. [AG],BARROW J.A. |
| Judgment Date | 07 April 2008 |
| Judgment citation (vLex) | [2008] ECSC J0407-1 |
| Date | 07 April 2008 |
| Court | Court of Appeal (Anguilla) |
| Docket Number | HCRAP2006/001 |
IN THE COURT OF APPEAL
The Hon. Mr. Denys Barrow, SC Justice of Appeal
The Hon. Mr. Hugh Rawlins Justice of Appeal
The Hon. Mr. Errol Thomas Justice of Appeal [Ag]
HCRAP2006/001
Ms. Nicole Sylvester and Ms E. Fontaine for the Appellant
Mr. Evans B. Welch Jr. and Ms. Vernette Richardson for the Respondent
Criminal Appeal — Sexual Intercourse with a minor — Sections 142 (1) and 143 (1) Criminal Code Anguilla CAP C140 — Appeal against conviction — whether unsafe or unsatisfactory — whether the trial judge erred in rejecting a no case submission — lack of particularity and specificity of dates in count 4 on the indictment — Appeal against sentence — sentence was excessive — Whether summation was unfair — whether a material irregularity occurred at the trial
The appellant was charged with four counts of having sexual intercourse with a minor. The virtual complainant (VC) Kenra Webster was born on the 15 th January 1989. One of the main issues of contention was that the precise date on which one of the incidents took place was uncertain. It was on a day unknown between 15 th January and 28 th February 2003. The second issue is that a particular incident which took place in her bedroom was not told to anyone at first instance. This, the VC said was because she was afraid. The appellant argued that a no case submission at the trial should have been upheld as the jury would have to speculate in light of the evidence adduced.
Held: allowing the appeal to the extent that:
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(a) the conviction on the fourth count is quashed (Rawlins JA and Thomas JA (Ag); Barrow JA dissenting); and
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(b) concurrent sentences of 8 years imprisonment on count one, 9 years on each of counts two and three are substituted for those imposed by the learned trial judge.
R v Galbraith [1981] 1 WLR 1039 applied
R v Cooper [1969] 1QB 267, 271 distinguished
R v Radcliffe [1990] Crim. LR 524 distinguished
Kwong Kin-Lung v The Queen [1996] UKPC 39 considered
The appellant, Glen Richardson, was charged with four counts of having sexual intercourse, at diverse places in Anguilla with a minor, Kenra Webster, contrary to section 142 (1) and 143 (1) of the Criminal Code, Revised Statutes of Anguilla, Chapter C140. ("the Code") The dates specified in the four counts were on a day unknown between 1 st and 31 st October 2001, a day unknown between 1 st September and 31 st December 2002, and a day unknown between 15 th January and 28 th February 2003.
The trial of the accused/appellant took place between 6 th and 9 th June 2006 before Creque J. and a jury and he was found guilty on all four counts. Then on 20 th June 2006 he was sentenced by the Court to a term of ten years on each of the counts one to three and nine years on the fourth count. The terms with respect to the second, third and fourth counts were ordered to run concurrently, and that with respect to the first count was ordered to run consecutively to the other terms.
Mr. Glen Richardson has now appealed. Of the eight grounds of appeal, learned counsel for the appellant Ms. Nicole Sylvester, informed the Court at the start of her address that grounds three and four will not be pursued and that grounds two, five and seven will be argued together. Therefore, the grounds of appeal argued relate to: the lack of particularity in Counts 2 and 3 on the indictment, the rejection of the no case submission by the learned trial judge, the conviction being unsafe and unsatisfactory, the sentence being unsatisfactory, the summation being unfair and a material irregularity occurring at the trial. These will be analysed in turn.
In submitting that the learned trial judge erred in rejecting the no case submission learned counsel makes references to different aspects of the evidence of the virtual complainant, Kenra Webster, both in evidence-in-chief and cross-examination. The first of these relates to an incident with the appellant at Island Harbour "in the month of January 2003." The second relates to an incident in Kenra's bedroom and the fact that this was not told to anyone because she was afraid. Then in cross-examination her admission that contrary to her evidence-in-chief, she did not tell the police that the accused had sex with her between 15 th January and 28 th February 2003. Thirdly, in relation to the incident in her bedroom, her inability to say whether it was in the first, second or third week in January.
In the circumstances learned counsel, Ms. Nicole Sylvester, further submitted that the jury would have to speculate in light of the evidence adduced and as such would have entered into the realm of speculation. Counsel submitted that for these reasons, the no case submission should have been upheld by the learned trial judge.
In written responses, learned counsel for the respondent, Mr. Evans Welsh submitted tersely that the fact that the virtual complainant could only remember the time span during which the offence occurred and not the date of the occurrence is, if anything, purely a matter of the weight to be attached to her evidence and was essentially an issue for the jury. Accordingly, he contended that such a circumstance was not a basis upon which a no case submission can succeed.
It is also submitted that while this virtual complainant's age was an important ingredient of the offence and that therefore the date of its occurrence was relevant, the virtual complainant would have remained within the relevant statutory age throughout the period particularized in the counts.
In reply the appellant submitted that it is erroneous to advance 'in the light of the specifics of the virtual complainant's testimony and the appellant's defence to it, the larger issue was essentially one of fact — did the events occur or not.' It is further contended that given the fact that the virtual complainant is a child giving details of sexual acts and varied accounts, the child could be transposing to the appellant experiences which she had with others or fantasising about experiences with the appellant.
Learned Counsel on both sides refer to the case of R v Galbraith as enunciating the law on no-case submissions. The relevant learning is that of Lord Lane CJ at page 1042:
"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of the inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."
It will be recalled that the issue with the evidence is the lack of specificity as to when the alleged acts of sexual intercourse took place. This excludes the "no evidence" limb of Galbraith and activates the second limb which contains certain principles. In particular, it speaks of the circumstance that 'the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability'. And the limb goes on to say that where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty then the judge should allow the matter to be tried by the jury.
At the end of the no case submission this is precisely what the learned trial judge did. This is her ruling:
"… I have considered the evidence, particularly that of the virtual complainant, but taking all of the evidence in its totality, notwithstanding that there is a lack of specificity as to specific dates, nonetheless, there are time periods which, to my mind are adequately made out in the evidence and as such applying the applicable principles which has ( sic) been set out in the Queen v Galbraith which has been followed by our courts time and time again and taking into account the statement made by the learned judges in the State v Mitchell it is my opinion that there is sufficient evidence on which a reasonable jury properly directed might convict in this case. As such, it is a matter to be properly left to the jury and I so do. The Defendant is accordingly called upon to make his defence."
Clearly, the answer to the question posed depends on compliance with the requirements of the law. In this regard in Blackstone's Criminal Practice 2004, the following learning is recorded at paragraph D14.27 at page 1465:
"It is clear from Lord Lane's judgment that it is no longer appropriate to argue on a submission of no case that it would be unsafe for the jury to convict, if only because that tempts the judge to impose his own views of the witnesses' veracity (see especially p. 1041 B-C). But it is submitted that the second limb of the Galbraith test still leaves a residual role for the judge as assessor of the...
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