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In the Privy Council on Appeal from the Court of Appeal of the Pitcairn Islands

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In the Privy Council on Appeal from the Court of Appeal of the Pitcairn Islands IN THE PRIVY COUNCIL ON APPEAL FROM THE COURT OF APPEAL OF THE PITCAIRN ISLANDS BETWEEN STEVENS RAYMOND CHRISTIAN LEN CALVIN DAVIS BROWN LEN CARLYLE BROWN DENNIS RAY CHRISTIAN CARLISLE TERRY YOUNG RANDALL KAY CHRISTIAN Appellants AND THE QUEEN Respondent CASE FOR THE RESPONDENT 14 June 2006 Moon Beever S J Eisdell Moore 24-25 Bloomsbury Square Pitcairn Public Prosecutor LONDON WCIA 2PL PO Box 2213 Auckland Individual Acting: F. Coulson NEW ZEALAND Macintosh HD:Users:simonmount:Desktop:Pitcairn:Submissions:10 - Privy Council.doc i Table of Contents 1. Introduction........................................................................................................................1 2. The Pitcairn Orders in Council 1952 and 1970 were in force in Pitcairn at all relevant times........................................................................................................................................5 a) The Orders in Council were validly made under the British Settlements Act 1887 ............... 6 i) Pitcairn is a British possession ................................................................................. 6 The Queen’s sovereignty is established by act of State................................. 7 In the alternative, the Queen’s sovereignty is established in fact and law....10 None of the matters raised by the appellants affects the Queen’s sovereignty ..................................................................................................................... 17 ii) Pitcairn was not acquired by cession or conquest ................................................. 24 Pitcairn’s status as a settled colony is established by long-standing practice, and should not now be disturbed ................................................................. 24 Alternatively, if Pitcairn’s status is open to re-examination, its status as a settlement is established in fact and law ...................................................... 25 iii) Pitcairn is not excluded from the definition of “British settlement” in the Act of 1887 .................................................................................................................................. 27 b) Alternatively, if Pitcairn is a ceded colony, the Orders in Council were valid pursuant to the Royal Prerogative ............................................................................................................. 28 i) The Queen has a prerogative power to pass laws for a ceded colony ................... 28 ii) The Queen has not divested herself of the power to pass laws for Pitcairn........... 28 3. The English laws against rape, incest and indecent assault were in force in Pitcairn at all relevant times ..............................................................................................31 a) The laws against rape and other serious crimes were in force from first settlement pursuant to the common law.................................................................................................31 b) The laws against rape and other serious crimes were continued in force by the Pacific Order in Council 1893 ...........................................................................................................35 c) The laws against rape and other serious crimes were continued in force by successive Judicature Ordinances from 1961.........................................................................................35 Macintosh HD:Users:simonmount:Desktop:Pitcairn:Submissions:10 - Privy Council.doc ii d) None of the objections raised by the appellants prevented the application of the laws against rape and other serious crimes in Pitcairn................................................................41 i) The Governor complied with the publication requirements of the Pitcairn Orders in Council when passing the Judicature Ordinances..............................................42 ii) The Judicature Ordinances were not void for uncertainty..................................44 iii) The appeal provisions for Pitcairn did not render the Sexual Offences Act 1956 inapplicable...............................................................................................................46 4. The trials were not an abuse of process......................................................................51 a) Abuse of process: the legal test.......................................................................................... 52 b) It was unnecessary to have a copy of the Sexual Offences Act physically present on Pitcairn Island ...................................................................................................................................... 56 i) Rape and sexual assault are mala in se, and universally known to be criminal ..... 56 ii) It was foreseeable that rape, and other sexual offences would be prosecuted in Pitcairn ...................................................................................................................... 59 c) The law of sexual offences was accessible to all Pitcairners.............................................. 71 d) The absence of English Police on Pitcairn prior to 1996 did not render the trials an abuse of process ............................................................................................................................... 74 e) There was no abuse of process occasioned by systemic delay ......................................... 78 f) The other matters raised by the appellants did not give rise to an abuse of process .......... 80 5. The Governor was entitled to base aspects of the Pitcairn Ordinances on New Zealand models, and to appoint New Zealanders as Pitcairn lawyers and Judges..84 6. The Supreme Court did not err in defining the elements of rape ............................89 7. The Supreme Court did not err when assessing the complainant’s credibility in the case of Carlisle Terry Young, and did not mis-direct itself on lies...................96 8. Conclusion .....................................................................................................................100 1 CASE FOR THE RESPONDENT MAY IT PLEASE YOUR LORDSHIPS 1 INTRODUCTION 1.1 In January 2000, a 15 year old girl on Pitcairn Island reported to a visiting Police officer that she had been raped.1 The most serious incident she described was a rape 1-388/a – 1-391/e involving two men acting in concert. She told the Police the two men had held her down, inserted a t-shirt in her mouth as a gag, tied the t-shirt around her head, and taken turns to rape her while she struggled and cried.2 At the time she was approaching her 11th birthday. The offenders were adult men, aged 19 and 21. 1.2 The Police spoke to one of the men involved in that incident, the appellant Randall 8-3593 Christian, on 12 April 2000 and he denied that he had ever touched the complainant in a sexual way. 1.3 A week later the Police spoke to another Pitcairn woman, who made a statement 8-3627 alleging a number of incidents of rape and other sexual assaults on Pitcairn from the time she was aged 8-9 years. She suggested that such offending was widespread on Pitcairn Island. This resulted in a much larger-scale investigation, involving interviews 8-3649/c with complainants and suspects in several different countries. 1.4 As a result of this investigation, charges were laid against 13 men, and seven trials were held on Pitcairn Island in October 2004.3 The six appellants were convicted of 30 offences, including rape, incest, and indecent assault, over the period 1964 to 1999.4 1.5 In summary: (a) Four of the six appellants were convicted of a total of 13 counts of rape. The four convicted of rape were Randall Kay Christian, Carlisle Terry Young, Stevens Raymond Christian, and Len Carlyle Brown. 1 She had earlier disclosed the offending informally, and made a formal statement to Police on 16 January 2000. 2 These allegations were ultimately proved at trial. The Record references are to the trial evidence. 3 Further proceedings are currently in progress: one man is awaiting trial in the Pitcairn Supreme Court following extradition from Australia, and two men have recently appeared in the Pitcairn Magistrate’s Court following extradition from New Zealand. The prosecution has elected not to proceed with charges against two men, and a third man resident in New Zealand is awaiting an extradition hearing. 4 The seventh accused, Jay Calvin Warren, was acquitted on the sole charge he faced. Macintosh HD:Users:simonmount:Desktop:Pitcairn:Submissions:10 - Privy Council.doc 2 (b) The fifth, Len Calvin Davis Brown, was convicted of five counts of indecent assault, having pleaded guilty to three of those charges.5 (c) The sixth, Dennis Ray Christian, was convicted of one count of indecent assault and two counts of incest, having pleaded guilty to those charges. (The offences of incest were not identified as incest in the judgments below in order to protect the identity of the complainant.) 1.6 Of the 30 convictions,6 three involved consensual behaviour where any consent was negatived by the age of the complainant,7 and two involved potentially consensual behaviour (incest).8 The remaining 25 convictions were for non-consensual offending. 1.7 The Appellants now appeal against their convictions on the grounds that: (a) The English law of rape and sexual assault did not apply on Pitcairn at the relevant times because Britain did not have sovereignty over Pitcairn, and/or because the British Settlements Act 1887 did not apply to Pitcairn; (b)
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