IN a rape case in 1966, the trial judge refused to rule on an objection that the evidence of the complaint was inadmissible because it was elicited by questions of an inducing character.

This resulted in the jury finding the accused Keith Mayers guilty of rape.
Dissatisfied with the decision, Mayers appealed to the Guyana Court of Appeal.
That court, constituted by the Chancellor, Sir Kenneth Stoby and Justices of Appeal, J.A. Luckhoo and Guya Persaud allowed the appeal and set aside the conviction and sentence.
The Court of Appeal held that: 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, appeared for the appellant and G.A. G. Pompey represented the Crown.
Chancellor Stoby delivered the judgment of the Court as follows: “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 this 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 his failure to rule deprived the prisoner of the possibility of the complaint being held inadmissible.”
“Ever since the R.v. Lilleyman, [1896] 2 Q.B.D. 167, in cases of rape and kindred appeals, evidence that a complaint was made by the prosecutor shortly after the alleged occurrence, and the particulars of such complaint, have been given in evidence on the part of the prosecution not as being evidence of the facts complained of, but as evidence of the consistency of the conduct of the prosecutor with the story told by her in the witness box and as negativing consent on her part.”
“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 expected? 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 prosecutor as well as the witness to whom the complaint was made give 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 arises 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 arises 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 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 unimportant.”
“In sexual cases the unimportant assumes a different character which the written word can never convey.”
“When this Court looks at the evidence objected to, it cannot with a feeling of uncertainty 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 there was no 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 was upheld.

(By George Barclay)