IN 1966 Keith Mayers was convicted by the jury of rape after the trial judge had failed to rule that evidence of the complaint was inadmissible on the ground that the complaint had been elicited by questions of an inducing character.
But on appeal, a court constituted by Chancellor Kenneth Stoby and Justices of Appeal J. A. Luckhoo and Persaud –
Held: where, as in relation to complaints made in sexual cases, the admissibility of evidence depends on the discretion of the trial judge and the principles to be applied in exercising that discretion , the trial judge cannot flinch from exercising his authority..
Appeal allowed.
J. O. F. Haynes, Q. C. with C. A. Massiah, for the appellant:
G.A. G. Pompey for the Crown.
Delivering the judgment of the Court, Chancellor Stoby said: The appellant in this case was convicted of rape. He appealed to this court on three grounds but we propose to deal with one ground only.
During the trial the mother of the girl alleged to be raped was called as a witness for the Crown. The purpose of her evidence was to show that the virtual complainant had made a complaint to her.
After she had given evidence and was cross-examined, counsel who appeared for the appellant at the trial submitted in the absence of the jury that having regard to the answers given by the mother in cross-examination , the complaint was inadmissible as it was elicited by questions of an inducing character.
Counsel for the Crown submitted that although the mother asked her daughter certain questions , yet having regard to the relationship of mother and daughter , the complaint was admissible.
While counsel for the Crown was replying to the defence submission, the judge intervened. The record before us is as follows: “At this stage , court indicates to counsel for defence that having regard to the defence as put to the complainant it would seem the making of the complaint was consistent with the defence although its weight may be attacked having regard to the manner in which it was made.”
As a result of ths statement by the judge , counsel for the Crown did not proceed with his reply, the jury was recalled and the trial proceeded without demur from defence counsel.
On appeal it has been argued that the complaint was inadmissible because it was obtained by leading questions and suggestions and that in any event it was the function of the judge to rule on the submission, and the failure to rule deprived the prisoner of the possibility of the complaint being held inadmissible.
Whenever evidence of a complaint is given two factors have to be borne in mind : (a) was the complaint made as speedily as could reasonably be expressed? And (b) was it voluntary and spontaneous and not elicited by leading inducing or intimidating questions? It can happen and often does that the virtual prosecutrix as well as the witness to whom the complaint was made gave their evidence in such a convincing way that no question can arise about the admissibility of a complaint.. If such be the case no ruling from the judge is required.
On the other hand it may occur and often does, that the person to whom the complaint is made makes admissions in cross-examination which might or might not cause the evidence to be inadmissible. As soon as the possibility arise of the complaint being held by the judge to be inadmissible it is for him the judge to rule .
Looking at the matter without the aid of any persuasive authorities , we are in no doubt about the judge’s function in a criminal case where objection is taken to the admissibility of evidence.
The judge must make up his mind and rule one way or the other . Quite understandably a situation may arise where counsel withdraws his objection and the evidence, if already accepted, remains and is dealt with in the summing-up as admissible evidence.
A Court of Appeal can, if opportunity offers, decide whether the evidence decide whether the evidence was correctly admitted.
But where the admissibility of evidence depends on the discretion of the trial judge and the principles to be applied in exercising that discretion, the trial judge cannot flinch from exercising his authority. The reason is patent.
Normally , admissibility depends on fixed principles, relevancy and so on; the judge’s discretion is not required ; his view of the relationship between the parties, the surrounding circumstances and the impression created in his mind are important.
In sexual cases the unimportant assumes a different character which the written word can never convey.
When the court looks at the evidence objected to, it cannot with a feeling of certainty say that the judge , had he exercised his discretion, would have admitted the evidence. He might have done so and had he applied the correct principles this court would not have interfered. But he refused to decide. He compromised and we are not constrained to substitute our discretion for the judge’s hesitancy.
A circumstance of some importance is that there was practically no corroboration whatsoever.
The judge warned the jury against convicting on uncorroborated testimony; he told them that the complaint to the mother did not afford corroboration . In this setting it was vital for the jury to know whether she had told a consistent story; had the complaint been ruled inadmissible this element of the prosecution’s case would have been lacking and without it we cannot say the jury must have convicted.
We consider the failure of the judge ,to give a decision on an important bit of evidence was a fatal omission, and consequently the conviction must be quashed and the sentence set aside. The appeal is allowed, said Chancellor Stoby in his judgment delivered on behalf of the Court of Appeal. Appeal allowed.