RAPE accused Keith Mayers was convicted of rape in 1966. But on appeal, was freed by an Appellate Court on the grounds that the trial Judge in addressing the jury had made a fatal

omission.

As a consequence, Mayers’ appeal was allowed. His conviction was quashed and his sentence was set aside.
Hearing the appeal was Chancellor Kenneth Stoby with Chief Justice J. A. Luckhoo and Justice Guya Persaud.

In a trial for rape evidence was given by a witness as to a complaint made to her by the virtual complainant. It was objected that evidence of the complaint was inadmissible on the ground that the complaint had been elicited by questions of an inducing character. The trial judge failed to rule on this objection and the accused was convicted.

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.
STOBY .C. 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 submissions, 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 complaint 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.

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 the 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 important.
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 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 there was no corroboration; 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.