The question to which this judgment is directed is whether in all the circumstancetances this Court should order a re-trial of the
Appellant? To consider this question it is necessary to refer briefly to the evidence given in the lower Court and also briefly,
to the learned Magistrate's judgement.
Although in his judgment the learned Magiststated at the very beginning that both the Appellant and hind his Co-accused elected a
Magistrate's Court trial it was conceded by counsel for the Respondent that there was no evidence of this in the Court Record. It
was for this reason that counsel agreed that the conviction of the Appellant should be quashed and he sought a re-trial.
Section 4(1) e Criminal Procedure Code Cap. 21 provides that subject to the other provisions of this Cods Code, any offence under the Penal Code may be tried by the High Court or by any Magistrate by whom such offence is shown in the fifth column of the First Schedule to be
triable. There is a proviso to this sub-section that the offence shall not be tried by a Magistrate unless the consent of the accused
to such trial has been first obtained. Rape is one of the offences.
The evidence bethe lower court which was taken over what I find to have been a very protracted period was, was, in summary, so far
as relevant as follows:
The complainant alleged that on the night of the 2nd of July 1993 she attended a 'Kati' with friends at 28 Vesi Street, Flagstaff
from 7.00 p.m. to approximately 10.00 p.m. At 10.30 p.m. she went to the "Dragon Night Club" with some friends where she
saw the Appellant and his Co-accused drinking at the bar at approximately 11.00 p.m. She knew the Co-accused as a friend of her own
boyfriend and went over and spoke to both the Appellant and Vilisoni and drank about four glasses of beer bought by the Appellant.
The Appellant and the Co-accused then the Night Club. The complainant with a friend Litiana VakalVakalutugone who had accompanied
her to the Night Club left the Club at approximately 1.00 a.m. to go to the "Etiquette Night Club". They met both the Appellant
and Vilisoni outside another Night Club, "Trapps" and all four then went to the "Etiquette Club".
Lat, after Litiana Vakalutugone remained in the "Etiquette Club", the complainant annt and Vilisoni went to the Appellant's
car where they waited for him for approximately one hour. According to the complainant she asked the Appellant to take her back to
the 'Kati' but then changed her mind and asked to be taken to Nabua to obtain some food at an outdoor barbeque.
Instead of doing this the Appellant drove Vilisoni and the complainant to the new extension cemetery in Reservoir Road where the
complainant alleged the Appellant forced her down on to the top of a cement grave and raped her. The Appellant claimed all through
that the complainant had consented to intercourse and this was the only issue before the lower court. The complainant then alleged
that the Co-accused also raped her at the same place. She cried and was eventually driven back to Vesi Street by the Appellant.
She said that when she arrived at Vesi Street she began to cry agnd spoke to Luisa Stevens aens a flatmate who asked her why she
was crying. The complainant then told Luisa that she had been raped by the Appellant and Vilisoni.
The complainant did not report the matter to the Police untih August 1993 because she sshe said she was embarrassed, did not want
her family to know, feared possible publicity in the press and had been discouraged by other people.
She also said that on the 6th of July 1993 she went e Colonial War Memorial Hosl Hospital to see a Doctor Andrews because she had
abnormal discharge of blood from her vagina.
It is not necessary to refer to all the other evidence given in the lower court except to say that Doctor Andrews gave evidence and
stated that she found the complainant sexually active but could find no physical injuries inside or outside her vagina. She could
not conclude there was any recent sexual intercourse.
Luisa Ss also gave evidence of the complainant alleging that she had been raped early in the mornimorning of the 3rd of July 1993.
Counsel for the Appellant made much of various inconsistencies in the complainant's evidence and of errors allegedly made by the
learned Magistrate in admitting evidence through a member of the Women's Crisis Centre as corroboration of the complainant's story
or at least as of showing consistency of conduct by the complainant.
He referred me to the decision of the Court of Appeal in Ilaitia Koroiciri and Solomone Sila v. Reginam, Criminal Appeal No. 43 of 1979 where the time between the commission of the offence, rape, and the date on which the appeal was
upheld was only little more than eight months. He drew my attention to the last paragraph of the judgment in which the Court said:
"The appeal will be allowed and the conviction and sentences quashed. Although, if guilty, the appellants merit punishment, the
evidence in the case presented complicated questions involving credibility. We are doubtful whether it shows a sufficient likelihood
that conviction would result from a second trial, to justify our making an order for one. The appellants must be given the benefit
of that doubt."
Mr. Reddy submitted that it would be unfair to the Appellant to require h face another trial given tven the state of evidence against
the Appellant.
In reply counsel fo Respondent referred me to one local case Pita Vuli,, Criminal Appeal No. 3 of 1993 in which Scott J. directed a re-trial after holding, again in a rape case, that the Magistrate in
the Court below had wrongly found corroboration when there was no evidence of this.
However there was other evidence of recent complaint and of the very serioture of the offence committmmitted by an uncle of a thirteen
year old virgin. In Vuli's case the offence occurred on 6th June 1990, the Appellant being convicted on 19th August 1992.
His Lordship referred also to the gravitthe alleged offence and the other evidence available againsgainst the Appellant.
Counsel also red me to three English cases only two of which I need mention here. The first was Reginaegina v. Kent Justices Ex-parte Machin (1952) 2 Q.B.355 in which the Appellant had been convicted of larceny by Justices and sentenced to seven months imprisonment. The
Court of Criminal Appeal refused to order a re-trial because the Appellant had served very nearly the term which he would have served
in any event.
The second case mentioned by Mr. McNaughten was Arthur John Saun/u> (1974) 58 Cr. App. R.24 R.248 in which the Court of Criminal Appeal declined to order a re-trial which would take
place nearly three and a half years after the offence was committed. The Court also noted that by the time of the appeal the Appellant
had been in prison for a number of years. Counsel stressed the difference in the time the Appellant here had been in custody and
that of Saunders and said that because of the gravity of the offence a re-trial should be directed.
(1979) 2 ALL E.R. 904 at pp 908-909. In that case, an appeal from Jamaica, the Privy Council had been asked among other things to give a statement of principles
which should apply in considering whether or not a new trial should be ordered and I shall mention some of these principles as stated
by Lord Diplock in a moment. First however I should refer to the statutory provision giving the High Court the right to order re-trial.
This is section 335 of the Criminal Procedure Code which says that the High Court shall have power, if it thinks fit -
"(a)......
(b)to the case to the magi magiss' court for rehearing and and determination with such directions as it may deem necessary."
"The interest of justice that is served by the power to order a new is the interest of the public in Jamaica that those personersons
who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge
in the conduct of the trial or in his summing up to the jury."
His Lordship considered that as an extreme case and gave an example of another extreme case which does not apply here. He then went
on:
"In cases which fall between the two extremes there may be many factors deserving of deration, some operating against and some
in favour of the the exercise of the power. The seriousness or otherwise of the offence must always be a relevant factor; so may
its prevalence; and, where the previous trial was prolonged and complex, the expense and the length of time for which the court and
jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial
is to some extent an ordeal for the defendant, which he ought not to be condemned to undergo for a second time through no fault of
his own unless the interests of justice require that he should do so. The length of time that will have elapsed between the offence
and the new trial if one be ordered may vary in importance from case to case, though having regard to the onus of proof which lies
on the prosecution lapse of time may tend to operate to its disadvantage rather than to that of the defendant. Nevertheless there
may be cases where evidence which tended to support the defence at the first trial would not be available at the new trial and, if
this were so, it would be a powerful factor against ordering a new trial."
Applying those remarks to the facts of the present case I am of the opinion it would be proper to orderorder the Appellant to be
re-tried in the Magistrate's Court. I hold that opinion for a number of reasons, first that it is obvious that the appeal has been
successful only on what I may call a technical ground, one of form or procedure and not substance. Secondly despite the various criticisms
particularly of the complainant by Mr. Reddy the fact is that the learned Magistrate had evidence of a fresh complaint which he was
entitled to accept.
He he advantage which this court did not of seeing the witnesses give their evidence. That, as , as has been said time and again,
is a very good reason for an Appellate Court not differing from a trial justice's finding on the credibility of a witness. The third
reason why I consider a re-trial should be ordered is the prevalence and gravity of the offence.
At the conclusion of the hearing before me on 7th February I directed that the Appellant be released immediately
from custody on his entering in to a bond of $2,000.00 with one surety. The Appellant is bound by that bond until the final determination
of his case.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgmenan>:
Penal Cop. 17.
Criminal Procedure Code Cap. 21.
Regina v. Ken Justices Ex-parte Machin (1952) 2 Q.B. 355.
Mohammed Kasim v. State, Criminal Appeal No. 21 of 1993.
Ilaitia Koroiciri and Solomone Sila v. Reginam, Criminal Appeal No. 43 of 1979.
Reid v. The Queen (1979) 2 ALL E.R. 904.
Arthur John Saunders (1974) 58 Cr. App. R.248.
Pita Vuli, Criminal Appeal No. 3 of 1993 - unreported judgment of Scott J. dated 8th March 1993.
No other authorities were referred to in argument.
Ham0003j.96s
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