-freed by Court of Appeal

KEITH Mayers, convicted of rape on inadmissible evidence accepted by a trial judge in 1966, was freed on appeal by the Guyana Court of Appeal, headed by Chancellor, Sir Kenneth Stoby.
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.
On appeal, the Appellate Court, constituted by Sir Kenneth Stoby, Chancellor, and included Chief Justice J. A. Luckhoo and Justice Guya Persaud 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, while G. A. G Pompey represented the Crown.
Delivering the judgment, 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 to the mother in cross-examination, the complaint was inadmissible as it was elicited by questions of an inducing character.”
“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 QBD 167, in cases of rape and kindred appeals, evidence that a complaint was made by the prosecutrix 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 prosecutrix 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 prosecutrix 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-examinations 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.”
“R. v. Cummings, [1948] All E.R. 551, was a case in which the prosecutrix alleged that she was raped at night. Owing to certain circumstances, she did not make a complaint that night although she saw several people, but complained next day to an elderly person.”
“Evidence of the complaint was admitted and the accused convicted. It was submitted on appeal that the complaint was wrongly admitted as it was not made immediately. Lord Goddard, C. J, in giving the judgment of the court said:
“Who is to decide whether the complaint is made as speedily as could reasonably be expected ? Surely it must be the judge who tries the case. There is no one else who can decide it. The evidence is tendered and he has to give a decision there and then whether it is admissible or not. It must, therefore, be a matter for him to decide and a matter for his discretion if he applies the right principle.”
“In R. v Norcott,12 Cr. App. Rep. 166, an objection was taken at the trial that the person to whom the complaint was made had induced the prosecutrix to make the complaint. The judge overruled the objection and admitted the evidence. In his summing up he said:
“In each case the decision on the character of the question put, as well as other circumstances such as the relationship of the questioner to the complainant, must be left to the discretion of the presiding judge.”
“The accused was convicted and on appeal the conviction was upheld.”
In relation to Keith Mayers case, Chancellor Stoby added: “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.”

(By George Barclay)