ALEXANDER v STATE

REPUBLIC OF TRINIDAD AND TOBAGO

 

IN THE COURT OF APPEAL

 

Cr. App. No 16 of 2012

 

Between

                   CURTIS HERBERT ALEXANDER (also called Shabba) –           Appellant

and

THE STATE  –                  Respondent

 

PANEL: 

  1. Weekes, J.A.
  2. Yorke – Soo Hon, J.A.
  3. Mohammed, J.A.

 

APPEARANCES:  

Ms. K. Byer for the Appellant

Mrs. A. Teelucksingh-Ramoutar and Mrs. T. Hudlin-Cooper for the Respondent

 

DATE DELIVERED:  7th July 2015

 

JUDGMENT

 

Delivered by: Mohammed J.A.

 

INTRODUCTION

(1) On October 8th 2012, the Appellant was convicted of the rape of the virtual complainant (“N”) and sentenced to a term of imprisonment of twenty years with hard labour, to start from that day.

 

THE PROSECUTION CASE

(2) The Prosecution’s case was that on the night of August 19th 2005, at a bar in Arima, N was out with her brother-in-law, a neighbor and another person. N intended to meet her boyfriend at that bar but she did not see him in the crowd. The Appellant, who was known casually to N before, started to dance with her. While dancing, the Appellant asked her for a sexual favour which she refused. The Appellant was however persistent.

 

(3) In an attempt to evade the Appellant’s persistent advances, N left the bar that she was in and went to a nearby bar. The Appellant however followed her into the second bar, “The Queen’s Bar”. He proceeded to place what appeared to be a gun by her waist and he led her through the crowd to the ladies room. In the ladies room, N resisted the Appellant. The Appellant proceeded to beat and choke her to the point where she felt that she could not breathe anymore. N implored the Appellant not to kill her. She began to bawl but her cries were, in effect, drowned out by the loud music being played in the bar. The Appellant threatened N that if she did not stop, he would shoot her.

 

(4) The Appellant then proceeded to push N over the toilet area. She pleaded that she was having her period and as well that her bother-in-law, in whose company she had been in earlier that night, would come looking for her. The Appellant ignored her entreaties. He ordered N to take off her clothes and proceeded in the toilet to have sexual intercourse with her without her consent. The Appellant then left the bathroom and told N that he would be looking for her.

 

THE DEFENCE CASE

(5) The Appellant’s defence was that of a denial of having sexual intercourse with N. His version of events was that he had been at Queen’s Bar on the night in question and that he had danced with her, thereby apparently incurring the wrath of a man in whose company she was in. That man slapped her on both sides of her face and he also choked her in front of the Appellant. When N had received an initial slap from the other man, the Appellant had tried to intervene on her behalf. The Appellant asked the man “what was the scene” and cuffed him. A fracas developed and escalated, during the course of which N hit the

Appellant’s ear with a bottle, which broke. The Appellant became irritated by what had occurred and he hit N a slap. Bouncers from the bar then intervened and demanded that one of the parties leave the bar. The Appellant did so and he did not see N again on that night.

 

THE RELEVANT BACKGROUND

(6) The core issue in the case was the credibility of N and the Appellant, since there was no dispute that the Appellant and N had been known to one another, briefly and casually, before the incident in question.

 

(7) The Prosecution adduced as bad character evidence, under gateway 15 N (1) (g) of the Evidence Act Chap. 7:02, relevant to the credibility of the Appellant, a previous conviction which he had for assault by beating on the November 16th

 

 

GROUNDS OF APPEAL

Ground 1

(8) The Appellant’s first ground of appeal is that the judge’s directions on the bad character evidence were wholly inadequate and unbalanced. Counsel for the Appellant submitted:

(a) That the jury should have been explicitly warned that the evidence admitted was not relevant to the propensity of the Appellant or that a warning should have been given to that clear effect;

(b) that the judge should have “elaborated” on the “strengths” and “weaknesses” of the bad character evidence;

(c) That the judge should have warned the jury in clearer terms against placing undue reliance on the previous conviction of the Appellant;

(d) That the judge should have told the jury that the bad character evidence was merely “background evidence” in the Prosecution’s case;

(e) That the judge ought to have “elucidated” more clearly on the “weight” that the jury ought to have placed on this type of evidence.

 

Law and analysis

(9) In his summing up, the judge directed the jury in the following terms on the relevance of the bad character evidence:

“Now, he was further cross-examined, and he told you that he has a conviction for assault by beating, and that the offence was on the 16th November 2010, and he was sentenced the next day after trial at the Sangre Grande Magistrates’ Court to five days hard labour. And I must explain to you how that evidence is relevant to your consideration of the case. As you are aware, the accused is charged with Rape. And the Prosecution’s case is that, he, the accused, had sexual intercourse with Nadia against her consent. He had told you that when he – the accused had told you, in evidence, that he had not committed the offence and that Nadia had pelted him with a bottle in an altercation between himself, herself and another man. And he says that – well, his case then has involved the accusation that after the altercation, he left and met his girlfriend, they went home and that Nadia has lied when she said that he pursued her and raped her at Queens Recreation Club.

 

So, you would need to decide whether you accept the evidence of Nadia. And, in order to do so, you will have to consider whether the accusations of pelting a bottle, lying and invention, made by the accused, is worthy of belief. In fairness to Nadia and to you, it would be wrong for you to be left in ignorance of the character of the man making those accusations, the accused. So, you are entitled to have regard to the accused’s own character, as revealed by his previous conviction, when deciding what the truth is. The accused admits his previous conviction and the circumstances of it.

 

So, it is your decision whether your knowledge of the accused’s conviction helps you to resolve this important issue on truthfulness, and, if so, what weight you give it. Please remember that the bad character evidence is just part of the evidence in the case. How important a part, is for you to judge, but bad character cannot alone prove guilt. You must, in the end, resolve the question whether the evidence of Nadia was truthful and reliable.”(sic) – see Summing up pg. 21, lines 38-50 and pg. 22, lines 1-27

 

(10) In situations where bad character evidence has been admitted under the credibility gateway only and it is not also relevant to the issue of propensity, if the judge forms the view that, absent a warning, there is a risk that the jury might improperly “stray” toward a finding of propensity, then the jury should be explicitly warned and directed that the evidence is not relevant to propensity. In R vLafayette [2008] EWCA Crim 3238 Hooper L.J. said at para 41:

 

“If, on the other hand, the judge had concluded both that the evidence was not capable of establishing a relevant propensity and that in the absence of a warning the jury might stray towards a finding of propensity, they required an explicit direction that they must not regard the evidence of the 1985 and 2003 incidents as any evidence that the defendant acted as alleged in the indictment.”

 

(11) Further, if the direction falls short of the ideal explicit warning where such is required, an appellate court will examine the direction to determine whether there are nevertheless “sufficient safeguards” contained in it, so as to justify the conclusion overall that the conviction is “safe”. At paragraphs 51-53 in Lafayette Hooper L.J. thus reasoned:

“51. We return to this case. The judge said, as we have seen:

‘When considering that account, you are entitled to consider what you have heard about him and about his previous record of offending which includes: the use of a weapon in 1985, and this altercation with Samantha in 2003, when a penknife was produced and threats were apparently made.

In the end however, you must evaluate matters on what you have heard and you have seen and unless you have reliable evidence then you should disregard them.’

52. He had earlier said:

‘Of course a defendant’s previous convictions are only background. They do not tell you whether or not he has committed this offence.

What really matters is the evidence that you have heard in relation to this allegation. Please be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions.’

53. Notwithstanding the failure to tell the jury that they had to be sure before relying on the 2003 incident and notwithstanding the failure to deal with the issue of credit/propensity in the way we have outlined, there were sufficient safeguards in these passages in the summing up that we are satisfied, in this case, that the conviction is safe.”

 

(12) The approach in Lafayettehas been subsequently followed, most recently, in the decision of Amaar Najib v R [2013] EWCA Crim. 86, per Pitchford L.J. at paragraphs 33-51. The approach adopted by the United Kingdom court of appeal in cases where an explicit propensity warning was required, but not given, has been to assess the directions for the presence of certain elemental safeguards. Such safeguards would be regarded as sufficient if: (a) the directions, in a tailored fashion, explain the contested issues in the case and link those issues to the limited purpose for which the bad character evidence was admitted (as to credibility only); and (b) if the overall tenor of the direction is such that it, in effect, mitigates the risk of impermissible propensity reasoning. In addition, if the prosecution’s case is a strong one, then notwithstanding the absence of a propensity direction, the verdict may be regarded as safe. The decision in

R v ‘PT’[2013] EWCA Crim. 792, is an example of a case where the potential for impermissible propensity reasoning existed. The judge failed to give the jury any guidelines because of his likely mistaken view of the evidence, instead simply leaving that evidence for the jury to make of it what they would. The prosecution’s case was not a particularly strong one and unsurprisingly, the United Kingdom court of appeal concluded that the conviction was not safe.

 

(13) In this case, there was a risk, absent a warning, that the jury might improperly treat the bad character evidence as being relevant to the issue of propensity. This was so because of the general nature of the previous conviction for the offence of assault by beating and also the level of physical violence involved in the instant offence which contained an allegation from N that she was beaten by the Appellant at a certain point in the attack. Ideally, explicit directions ought to have been provided by the judge, in line with what was suggested at paragraph 41 of Lafayette, to guard against the risk of the jury engaging in what has been termed “theforbidden chain of reasoning”.

 

(14) The direction having fallen short, we must consider whether there were nonetheless “sufficient safeguards” contained in it. We conclude that there were. These safeguards were the following:

(a) The judge made it abundantly clear that the relevance of the evidence was to the issue of truthfulness. The jury was thus focused on the limited relevance of the bad character evidence. There was no suggestion by the judge that the evidence might have been relevant in any other way;

(b) The judge did not speak of the issue of truthfulness in a vacuum or in an abstract manner. He set out the factual context in which the issue arose for determination, thereby refining his directions on this issue and in the process reiterating, in effect, that the evidence was only relevant to the issue of credibility;

(c) The judge told the jury that the bad character evidence was just “part” of the evidence in the case;

(d) The judge told the jury that the bad character evidence alone, could not prove guilt.

                    The cumulative effect of these directions could have left the jury in no doubt that the

evidence was relevant only to the issue of truthfulness. The fact that the words “credit” or “credibility” were not used is of no moment.  As paragraph 49 of the judgment in Lafayette makes clear, in giving the relevant directions, it is not necessary that the words “credit” and “propensity” should or need be used. The important matter to be conveyed is the underlying concept and the concept of truthfulness accurately captured the essence of what credibility was about in this case.

 

(15) We do not agree with the submissions of counsel for the Appellant that it was necessary for the judge to go further to direct the jury that the bad character evidence was only part of the “background evidence” and to summarize the “strengths” and “weaknesses” of the bad character evidence. Such directions as suggested would have only been required if the evidence had been admitted as being relevant to propensity. The evidence was not admitted as being relevant to propensity and accordingly, the directions contended for were not relevant. Further, for the judge to have attempted any direction on the “weight” to be accorded to the evidence as suggested by Counsel by the Appellant, would have been a fundamentally misguided exercise amounting to or dangerously bordering on a usurpation by the judge of the role of the jury.

 

(16) We do not agree with the submission of Counsel for the Appellant that there was any duty on the judge to extract, with respect to the Appellant’s previous conviction, the fact of whether he had been found guilty or had pleaded guilty. It is the duty of defence Counsel to perform this exercise.

 

(17) With respect to the Appellant’s previous conviction, if there had been a guilty plea, the

Appellant would have received the usual direction that this was a fact favourable to his credibility. On the face of it, the use of the words “after trial” by the judge in his direction at page 21, line 41, of the Summing Up, suggested that there was a contested trial. Counsel however submitted that she had been instructed, on the appeal, that the appellant had pleaded guilty to the previous offence of Assault. Counsel contended that this guilty plea, if made known to the jury, might have had a favourable impact on the verdict.

 

(18) In our view, evidence of a guilty plea to the charge of assault on the one hand, was not realistically capable of negating or counteracting the compelling weight of the prosecution’s case, on the other hand. The prosecution’s case was based on strong evidence and the primary issue to be determined was a simple and straightforward one. Therefore, this evidence, if presented at trial, would not have affected the outcome of the appellant’s case.

 

(19) We find no merit in ground one. Though the direction was not as explicit as it ought to have been, it nonetheless contained sufficient safeguards, particularly when considered against the background of a strong prosecution case.

 

Ground 2

(20) The second ground of appeal is that the sentence imposed was too severe. The judge’s sentencing remarks are contained at pages 28 and 29 of the record of the Summing Up and the Sentencing. The judge weighed in the balance the one mitigating factor that presented itself, that of the apparent youth of the Appellant, against the several aggravating features of the offence. These aggravating factors included:

  • The heinous nature of the offence;
  • That it occurred in a public place; – That there was the use of violence;
  • That there was the use of a weapon.

 

(21) The judge correctly identified the relevant range for this type of offence as being in the vicinity of 15/20 to 30 years. In the case of Marlon Gregory John v The StateCr. App. No. 39 of 2007 the appropriate sentence was considered to be one of 30 years imprisonment but was reduced to 25 years and 9 months after account was taken of the time spent on remand. In Steve Williams v The State Cr. App. No. 43 of 2001 the sentence for the offence of rape affirmed by the court of appeal was a life sentence, not to be released before 20 years. In Kester Benjamin v The State the 30 year sentence imposed for the offence of rape was varied to 20 years imprisonment and in Sealey v The State Cr. App. No. 2 of 2009 the court of appeal varied the original sentence of 15 years imprisonment to a sentence of 25 years imprisonment for rape.

 

(22) Counsel for the Appellant also submitted that the use of violence was not over and above the force necessary to commit the rape. We do not agree with this submission because of the several acts of physical violence used by the appellant.

 

(23) The very serious attendant circumstances of this offence undoubtedly required an appropriately severe sentence. We do not agree with the submission of Counsel for the

Appellant that the judge sentenced along the lines of the “worst of the worst” cases. Indeed, the sentence imposed was carefully measured and proportionate to the gravity of the offence.

 

(24) There is no basis to justify appellate interference with the judge’s sentence. Such interference would only be justified if the judge had incorrectly applied the relevant sentencing principles or if the sentence imposed had fallen clearly outside of the range available. This is not the position here. The sentence fell comfortably within a range which was appropriate for this type of offence, accompanied by its several aggravating features.

 

(25) Ground two is accordingly without merit.

 

DISPOSITION

(26)The appeal is therefore dismissed and the conviction and the sentence are affirmed. The sentence is to run from the date of the conviction.

 

 

 

  1. Weekes

Justice of Appeal

 

 

  1. Yorke – Soo Hon

Justice of Appeal

 

Mohammed

Justice of Appeal

 

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