TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cr. App: 2 of 2009

BETWEEN

KERNEL SEALEY Appellant

AND

THE STATE Respondent

PANEL:

P. WEEKES, J A

A. SOO HON, J A

R. NARINE, J A

Appearances: Mr. Daniel Khan for the Appellant Mr. Roger Gaspard for the Respondent

DATE DELIVERED: Thursday 16 th December, 2010.

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JUDGMENT

On the 3 rd February, 2009 the Appellant was convicted at the Port-of-

Spain Assizes of rape, buggery, grievous and .

He was sentenced to fifteen years at hard labour for rape, thirty years for buggery, fifteen years for grievous sexual assault and eighteen months for common assault. It was further ordered that the Appellant should receive fifteen strokes with the birch for the offence of rape. The sentences were ordered to run concurrently. The Appellant has appealed the convictions and sentences.

THE PROSECUTION’S CASE

On the 16 th December, 2001 M. B. a seventeen year old girl, was walking along Olton Road in Arima. The Appellant drove his car alongside her, pointed a gun at her and ordered her into the car. The Appellant drove to a bushy area where he ordered M. B.out of the car. He then blindfolded her and ordered her to walk. They walked for about 15 minutes after hcih M. B. was allowed to remove the blindfold. The Appellant then asked her for money. She indicated that she had none. She emptied her bag. Inside it was her food badge, which bore her name “Michelle” spelt with one “l”. He then ordered M. B. to walk to a bamboo patch, where he raped and buggered her. He also put his penis in her mouth and “locked” her neck. He told her that he would have to kill her. She pleaded with him and he said that he would give her a chance. Then he hit her behind her head and she lost consciousness.

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When she regained consciousness, the Appellant instructed her to put on an orange jersey and a three-quarter pants. The Appellant told her to look into the pocket of the pants and she would find a cheque. She complied with his instruction and she found a cheque in the pocket. The cheque bore the signature

“Kurt Sealey” and had her first name “Michelle” spelt with one “l”.

The Appellant later dropped M. B. at the taxi stand in Arima from where she travelled to Sangre Grande. She subsequently made a report to the police, and was medically examined at the Mt. Hope Hospital. The medical examination revealed a recently ruptured hymen, swelling to the introitus of the vagina and tenderness at the back of her neck consistent with a blow with a blunt object. A vaginal swab was taken and submitted along with M. B.’s underwear for forensic analysis. Human spermatozoa were identified on both items.

On 30 th December the Appellant was informed of the report at the Arima

Police Station. He responded “that is no rape, I and the girl talk.” The following day he was pointed out by M. B. at an identification parade.

THE APPELLANT’S CASE

The Appellant gave on his own behalf. He testified that he had a intimate relationship with M. B. for about four months. He had had sexual intercourse with her several times, usually at his home at Sherwood Park, Arima.

He would usually give her money on these occasions. On the material date M.

B. had come to his home and they had consensual sex. He had promised her

$500.00 a month before. On 16 th December, 2001 he had no money. He

Page 3 of 20 searched for money in his brother’s bedroom. He found no money. However, he found a cheque book. He wrote her a cheque, assuring her that it was “good like gold”. He asked her to spell her name. He wrote her name on the cheque and placed it in her purse. He did not have oral or anal sex with her, nor did he choke or hit her. M. B. had made up the allegations because of the bogus cheque he had given to her. On the material date his relationship with M. B. was “good but strained”.

GROUNDS OF APPEAL

The Appellant filed three grounds of appeal. These are:

1. The conviction is unreasonable, and/or the conviction cannot be supported

having regard to the evidence and/or the conviction is a miscarriage of

justice and/or the conviction is unsafe and/or unsatisfactory and/or there

exists a lurking doubt as to the safety of the conviction.

2. (a) The learned trial judge erred in law in failing to withdraw the case from

the jury at the end of the prosecution’s case on the ground that the

evidence of the prosecution was so discredited as a result of cross-

examination that no properly directed jury could properly convict on it.

(b) The learned trial judge erred in law in failing to withdraw the case from

the jury at the end of the prosecution case on the ground that the evidence

of the prosecution was so manifestly unreliable that not properly directed

jury could properly convict on it.

3. The sentence is too severe.

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SUBMISSIONS OF THE APPELLANT

These may be summarized as follows:

1. Based on the many material inconsistencies contained in the evidence led

by the State, and the evidence of the cheque, the conviction is unsafe.

2. Having regard to the evidence, there should be a “lurking doubt” in the

court’s mind as to the safety of the conviction.

3. Despite the fact that a no case submission was not made by defence

counsel the trial judge must evaluate the evidence to determine whether a

prima face case was made out. In this case the evidence of the virtual

complainant was so discredited as a result of cross-examination that no

jury properly directed could properly convict on it.

4. The evidence of the prosecution was so manifestly unreliable that no jury

properly directed could properly convict on it.

5. The sentence (sic) is too severe.

SUBMISSIONS OF THE RESPONDENT

These may be summarized as follows:

1. The convictions are neither unsafe nor unsatisfactory and can be

supported by the evidence.

2. The trial judge’s directions on the issue of inconsistencies in the evidence

were unexceptionable and have not been challenged by the Appellant.

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3. There is no sufficient basis on the evidence for the court to entertain any

“lurking doubt” as to the safety of the conviction.

4. There was no legal basis upon which the judge could properly have

withdrawn the case from the jury.

5. The Appellant has not established that the sentences imposed by the trial

judge were outside the broad range imposed for such offences, or that

judge was wrong in principle in imposing the sentences that he did.

LAW AND DISCUSSION

Material Inconsistencies

In his summing up the Trial Judge gave a careful and detailed direction on the inconsistencies contained in the evidence of the virtual complainant. He set out the evidence in relation to each consistency. He directed the jury to consider whether the inconsistency related to matters of “minor” or “peripheral significance” the cause of the inconsistency, and whether there was a reasonable explanation for it. Having gone through the evidence with the jury, he directed the jury to approach her evidence with “special care and caution” and analyze it

“very carefully and closely under a high –powered microscope” and to “put it

through a very fine sieve.”

Later in his summing up the trial judge directed the jury that if at the end of the day they found that the inconsistencies undermined her evidence, so that they could not feel sure of it, then they must reject it and find the Appellant not guilty.

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Curiously but significantly, in his written submissions Mr. Khan conceded that “the Appellant can make no successful criticism or complaint of the

impeccable and careful summation” of the trial judge.

We agree with these sentiments entirely.

Lurking Doubt

The genesis of the “lurking doubt” principle is to be found in the case of

Sean Cooper v. R (1969) 53 Cr. App. R. 82, a decision of the English Court of

Appeal, which was based on an interpretation of the court’s powers under section

2 (1) of the Criminal Appeal Act 1968, which empowered the court to set aside a conviction on the ground that “under all the circumstances of the case it is unsafe and unsatisfactory.” In quashing the conviction, Widgery L. J. observed at pages 85-96:

“It has been said over and over again throughout

the years that this Court must recognize the advantage

which a jury has in seeing and hearing the witnesses,

and if all the material was before the jury and the

summing-up was impeccable, this Court should not

lightly interfere. Indeed, until the passing of the Criminal

Appeal Act 1966 – provisions which are now to be found

in section 2 of the Criminal Appeal Act 1968-it was

almost unheard of for this Court to interfere in such a

case.

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However, now our powers are somewhat different,

and we are indeed charged to allow an appeal against

conviction if we think that under all the circumstances of

the case it is unsafe or unsatisfactory. That means that

in cases of this kind the court must in the end ask itself

a subjective question, whether we are content to let the

matter stand as it is, or whether there is not some

lurking doubt in our minds which makes us wonder

whether an injustice has been done. This is a reaction

which may not be based strictly on the evidence as

such; it is a reaction which can be produced by the

general feel of the case as the court experiences it.”

The powers of this court to set aside a conviction are to be found in section 44(1) of Supreme Court of Judicature Act Ch. 4:01 which provides that

this court shall allow an appeal on the ground that:

a. the verdict of the jury is unreasonable or cannot be supported having

regard to the evidence.

b. there was a wrong decision on a question of law, and

c. there was a miscarriage of justice.

In Solomon v. The State (1999) 57 WIR 432, this court held that the local

test of “miscarriage of justice” is not significantly different from the English

test of “unsafe”: See per de la Bastide C.J. at 454 D to F.

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In support of his contention that the court should have a lurking doubt as to the safety of this conviction, counsel for the appellant relied heavily on the

English case of R v. Taghibeglou (2005) EWCA Crim. 3453. In that case the

Appellant was convicted of indecent assault. In quashing the conviction

Richards L.J. stated at paragraph 25:

“However, we take the view that the matters to

which we have referred were such that, notwithstanding

the general point that the evaluation of witnesses is a

matter for the jury, this case, as it stood at the close of

the prosecution evidence, could not safely be left to the

jury. There were features of the kind that we have

described that made the prosecution case simply

untenable. The case offended common sense. The

actual verdict reached at the end of the trial is one about

which each member of this court would have at least a

lurking doubt if one expressed the matter in that way. In

our judgment, however, the matter is properly to be dealt

with not on that basis but on the basis that the problems

affecting the prosecution case were such that the case

should not have been left to the jury at all. That is the

basis on which this appeal is allowed and the conviction

is quashed.”

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Mr. Khan expressed the view in his written submissions that the facts in

Taghibeglou were “uncannily and remarkably similar.”

In that case the complainant alleged that she was attacked by the

Appellant in the back seat of his mini-cab. He telephoned her the next morning, which enabled the police to trace and arrest him. The prosecution’s case was that he must have obtained the complainant’s number by dialling his own number into her mobile telephone during the course of the attack, and then calling that number so that it was left in his phone for him to use later.

The Appellant’s case was that he had met the complainant on that evening. They chatted and exchanged telephone numbers and he had called her the next day to arrange a date.

The court found it “frankly incredible” that the Appellant could have obtained the complainant’s telephone number in the circumstances described, while at the same time carrying out the attack described by the complainant. The court was also of the view that it would be “incredibly foolish” for an attacker to enter his own phone number in the victim’s telephone so as to assist in his own subsequent detection. By making the telephone call the following day and making no to block his own number, the Appellant was again facilitating his own detection. In the court’s view there were critical aspects of the case against the Appellant which were “so implausible as to defy belief.” See paragraphs 20, 21 and 22.

In our view, the facts in Taghibeglou are clearly distinguishable from the case at hand. In this case, while it was foolish for the Appellant to give a cheque

Page 10 of 20 to the virtual complainant which might have assisted in his detection, it must be noted that he did not sign his own name to it. He signed his brother’s name

“Kurt M. Sealey.”

The cheque itself was drawn on a United States Bank, and showed on its face an address in the United Sates for Kurt M. Sealey. It was open to the jury to find in this case that the appellant may have considered that the cheque would not have been traceable to him, when the virtual complainant discovered that it was worthless.

In support of his submission that the court should entertain a “lurking doubt” as to the safety of the conviction, the Appellant has also put forward the

“unique spelling” of the virtual complainant’s first name “Michele” with one “l” on the cheque and the ready availability of the Appellant’s brother’s cheque book at the scene of the incident.

In response, the state relies on the evidence of the virtual complainant that her food badge which had her first name spelt with one “l”, would have been seen by the Appellant when she emptied her bag when the Appellant had demanded her money.

In addition, the evidence of the virtual complainant was that she had lost consciousness after she was struck on the neck by the Appellant. It was open to the jury to find that during this time the Appellant left the scene and returned with the cheque and clothes for the virtual complainant, assuming of course, that he did not have the cheque book on his person at the time.

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The court was not referred to any local decision in which the “lurking doubt” principle has been applied. The decisions to which we have been referred are of the English Court of Appeal which though of high persuasive authority, are not binding on this court. In any event, even if the principle is applicable to our local jurisprudence we are of the view that it should be applied in the rarest of cases, since the court must be ever mindful that it should not usurp the function of the jury whose duty it is to assess the credibility and reliability of the witnesses, evaluate the evidence and make findings of fact. Having regard to the facts of this case, we are not persuaded that the conviction is unreasonable, or cannot be supported having regard to the evidence, or that there has been a miscarriage of justice, or that the conviction is unsafe or unsatisfactory.

Accordingly we find no merit in the first ground.

No Case Submission

In this jurisdiction a submission of no case to answer may properly be made and upheld where – a. there is no evidence to prove an essential element of the offence and, b. where the evidence adduced by the prosecution has been so discredited

as a result of cross-examination or so manifestly unreliable that no

reasonable tribunal could safely convict on it.

See: Sangit Chaitlal v. State (1985) 39 WIR 295.

In this appeal the Appellant relies on the second limb referred to above. In support of his submission, the Appellant makes reference to the several

Page 12 of 20 inconsistencies contained in the evidence of the virtual complainant, which he contends, taken cumulatively, render her evidence incapable of belief.

The Appellant further submits that the evidence of the bogus cheque and the spelling of the name “Michele” on the cheque, render the evidence of the

virtual complainant manifestly unreliable.

In George Charles Galbraith v R (1981) 73 Cr. App. R. 124 at 127, the

English Court of Appeal issued useful guidelines as to how a judge should

approach a submission of no case to answer:

1. “If there is no evidence that the crime alleged has

been committed by the defendant, there is no difficulty.

The judge will of course stop the case.

2. The difficulty arises where there is some evidence but

it is of a tenuous character for example because of

inherent weakness or vagueness it is inconsistent with

other evidence. (a) Where the judge comes to the

conclusion that the prosecution evidence, taken at its

highest, is such that a jury properly directed could not

properly convict upon it, it is his duty, upon a

submission being made, to stop the case. (b) Where

however, the prosecution evidence is such that its

strength or weakness depends on the view to be taken

of a witness’s reliability, or other matters which are

generally speaking within the province of the jury and

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where on one possible view of the facts there is

evidence upon which the jury could properly come to

the conclusion that the defendant is guilty, then the

judge should allow the matter to be tried by the jury. It

follows that we think the second of the two schools of

thought is to be preferred.”

In R v. Shippey & Ors (1988) Crim. L. R 767 Turner J, considered the

principles set out in Galbraith and upheld a no case submission on the basis that having regard to what he viewed as “substantial” inconsistencies in the evidence of the virtual complainant in a case of rape, in which there was effectively little or no corroboration, a jury properly directed could not properly convict.

It must be noted that Shippey was a decision at first instance which was

decided on its own peculiar facts. In this case, the trial judge gave a very careful

and detailed direction to the jury with respect to inconsistencies contained in the

evidence of the virtual complainant, and urged them to reject her evidence and

acquit the Appellant if they were not sure of her evidence. The case for the

prosecution rested solely on the jury’s view of the credibility and reliability of the

virtual complainant. These were plainly matters within the sole province of the

jury. In our view, there was no legal basis on which the trial judge could properly

withdraw this case from the jury. It is not surprising that defence counsel did not

make a submission of no case at the end of the state’s case. Such a

submission would have been doomed to failure.

It follows that we reject grounds 2 (a) and 2 (b).

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SEVERITY OF SENTENCE

The Appellant has made the bare submission that “the sentence” is too severe. He has not indicated which of the sentences is too severe nor has he put forward any reasons to support his contention.

In imposing sentence the trial judge adverted to the following aggravating factors among others.

1. The use of an object resembling a gun.

2. The abduction of the victim.

3. The Appellant threatened to kill her if she alerted anyone.

4. Repeated acts of rape.

5. The Appellant ejaculated twice in her vagina.

6. The Appellant struck her behind her head, rendering her unconscious.

7. The Appellant has five previous convictions for possession of a weapon,

resisting arrest, using obscene language and with aggravation.

The trial judge could find no mitigating factors in this case nor did counsel for the Appellant refer us to any. At the hearing, counsel for the Appellant conceded that there were two other rather serious aggravating factors not mentioned by the trial judge. These are:

1. The age of the victim. She was just seventeen years old at the time of the

incident, and

2. The fact that she was a virgin at the time.

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For the State, Mr. Gaspard has referred us to the cases of R v. Gumbs

(1927) 19 Cr. App. R. 74, Kester Benjamin v. The State (unrep) Cr. App. No. 54

of 2008 and Dominique London v. The State Cr. App. No. 10 of 2003. At the

hearing we invited Mr. Khan to provide us with authorities on sentencing in such

cases. They were not forthcoming

In Gumbs, Hewart L.C.J. observed that the court never interferes with the

discretion of the court below merely on the ground that the appeal court might

have passed a somewhat different sentence. For the court to revise a sentence

there must be some error in principle.

In Richard Elliot v. The State (unrep.) Cr. App. No. 56 of 1999, the

appellant was convicted of rape, buggery, serious indecency and indecent

assault on a nineteen year old girl. A knife was used in carrying out the offence,

although no injury was inflicted with it. The trial judge imposed a life sentence

and ordered that the prisoner should not be released before 30 years. The Court

of Appeal reduced the sentence to 15 years and 10 strokes. In reducing the

sentence, de la Bastide C.J. (as he then was) observed that the court must keep

a sense of proportion in imposing sentence in matters of this kind, bearing in

mind that there are other cases in which the aggravating circumstances may be

even worse, for example, when the rape, is accompanied by violence, acts of

sexual degradation, or where the victim is raped by more than one person.

In Steve Williams v. the State (unrep.) Cr. App. No. 23 of 2001, the appellant was convicted of rape, buggery, serious indecency and robbery with

Page 16 of 20 aggravation. The offences took place over a period of 1 ½ hours. He was sentenced to life imprisonment for the rape, not to be released before 20 years.

In Kester Benjamin v. The State (unrep.) Cr. App. No. 54 of 2008, the

Appellant was sentenced to 30 years hard labour for rape, 23 years for buggery

and 13 years for robbery with aggravation. The Appellant used a knife in carrying

out the offence. He made threats to kill the victim. He had four previous

convictions, three of them for indecent exposure. The Court of Appeal observed

that the aggravating features of the case were serious. However, the case did

not fall into the category of cases at the highest end of the scale. The sentences

for rape and buggery were reduced to 20 years.

In Dominique London v. The State (unrep.) Cr. App. No. 10 of 2003, the victim was a 15 year old girl. She was raped by the Appellant over an extended period on there separate occasions. She was choked to the point of unconsciousness on two occasions. She was hospitalized for six days after the incident. A sentence of 30 years at hard labour was imposed.

In Jason Farfan v. The State (unrep.) Cr. App. No. 37 of 2009, the

Appellant was convicted of two counts of rape and three counts of robbery with aggravation. He was sentenced to 20 years and 10 strokes on the counts of rape, and 15 years and 12 strokes on the counts of robbery. The offences were carried out by multiple assailants. Weapons were used in carrying out the offences. There were repeated acts of violation, and multiple victims. The offences took place over an extended period of time. There was repeated rape of a mother in the presence of her daughter and daughter-in-law. The daughter

Page 17 of 20 who was 17 years old, was repeatedly raped. The daughter-in-law was 8 months pregnant. The court considered that this was a case which fell into the highest end of the scale. The court increased the sentences for rape to 30 years and 10 strokes.

Bearing these cases in mind and the aggravating factors in this case we consider that the sentence of 15 years imposed on the Appellant for rape is inadequate. In addition, in our view there is no justification in principle for the large disparity between the sentence for rape and that imposed for buggery.

Having reviewed the sentences imposed in the cases referred to above for like offences, we consider that the aggravating features in this case outweigh those in

Richard Elliot , Steve Williams and Kester Benjamin . However, the aggravating factors in Dominique London and Jason Farfan were somewhat

graver. In our view the appropriate sentence for rape and buggery in this case is

25 years hard labour.

In the result this appeal is dismissed and the convictions are affirmed.

The sentences for rape and buggery are varied as follows:

- 25 years hard labour with 15 strokes of the birch for rape.

- 25 years hard labour for buggery.

The sentences for grievous sexual assault and common assault are

affirmed. All the sentences will run concurrently and will begin from the

date of conviction.

Dated the 16 th day of December, 2010.

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P. Weekes J.A.

A. Soo-Hon J.A.

R. Narine J.A.

Cr. App: 2 of 2009

ERRATUM

Shortly after this judgment was delivered, it was pointed out to the court that the trial judge, imposed a term of 30 years hard labour for the offence of rape, and not 15 years as was stated in the judgment. It follows that there was

Page 19 of 20 no disparity between the sentences imposed by the trial judge for the offences of buggery and rape, and any criticism of the trial judge in this regard is regretted.

We are grateful to counsel for the Respondent for having pointed out the error. The sentences imposed by the trial judge were to be found within his discussion of sentences to be imposed for the offences generally. It would be useful in our view, if trial judges state clearly at the end of their discourse, the sentences that they are imposing for each offence.

While we acknowledge the misapprehension that occurred, in our view the sentences imposed for rape and buggery, should be varied to 25 years hard labour, with 15 strokes of the birch on the count of rape.

Accordingly, the order remains the same.

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