The Crown v. Kennedy (CR 31 of 2015) [2016] TCASC 14 (03 August 2016);
IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS
Criminal Division CR Case 31 of 2015
THE CROWN
V
CONRAD KENNEDY
BEFORE HON MR. JUSTICE ROBERT SHUSTER CRH; AND A JURY Ms Laitasha Williams appeared for the Crown.
Mr Ashwood Forbes appeared for the Accused.
Hearing dates - 02nd 03rd August 2016
|
RULING. |
1. On Tuesday the 02nd August 2016 a jury trial commenced hearing evidence against the above noted individual; who had been charged on an information alleging the following:-
Count One: - UNLAWFUL CARNAL KNOWLEDGE - which is an offence contrary to section 31 [a] of the Offences against the Person Ordinance; Chap 03.08. LTCI- Particulars of which are: - that you CONRAD KENNEDY on Friday 22 May 2015; at Sarah Hill Area South Caicos, had unlawful sexual intercourse with ROOD-KALLEL BISSAINTHE; she being a GIRL between the ages of thirteen and sixteen namely fourteen [14] years old.
2. After a jury had been empanelled; the Court heard sworn evidence on Tuesday 2nd August 2016 from the mother of the complainant / injured party through an interpreter; and in the late afternoon; the Court adjourned to hear-the.: testimony of the second witness the complainant ROOD-KALLEL BISSAINTHE; during the following morning; of Wednesday 03rd August 2016.
3. It should be noted that the Office of the DPP had to make arrangements to fly the complainant ROOD-KALLEL BISSAINTHE into the Turks and Caicos Islands from Haiti; so that she could give evidence against her step-father in relation to this particular case. The complainant’s step father is alleged to be the perpetrator of this crime. The defendant had prior to this trial commencing; been remanded in custody on another matter; and he has been held in custody at HMP Grand Turk; since his remand on that other matter.
4. In respect of this complaint alleging unlawful carnal knowledge; the facts reveal that the complainant had previously made two [2] witness statement to the police; concerning this particular allegation against her stepfather. One of those witness statements had been recorded by the police on the 27th May 2015 and the second witness statement had been recorded on the 02nd June 2015.
5. There had been no mention at the Pre Trial Review held in connection with this trial; that the complainant was in any way reluctant to give evidence; as per her witness statements. On paper the case against the defendant appears fine. The Court recognises however that there has been some delay in bringing this particular matter to trial; because today we are some fifteen [15] months on from the date of the alleged commission of this offence.
6. When the complainant was “sworn in” at 10.10am on Wednesday the 03rd August 2016 it quickly became apparent; that the complainant had been influenced by someone or somebody concerning this case. In her evidence the complainant kept saying that “she could not recall” what had happened; and this particular phrase was repeated by the witness; time and time again.
7. After an application by the prosecutor that the witness be treated as a hostile witness; the complainant was ruled by the Court to be; “a hostile witness.” Even then with that ruling; each of the complainant’s subsequent replies to the prosecutor’s questions the complainant answered questions to the effect; “that she could not recall.”
8. It was therefore patently obvious; to everyone that at this stage of the proceedings there could be no realistic prospect of a conviction in respect of this case alleging unlawful carnal knowledge. Crown Counsel asked the Court for a few moments to consider what she should do in respect of this case and her request for a brief adjournment was granted.
9. After a five minute adjournment Crown Counsel Ms Williams made an application under and here I quote “section 70 CPA” for permission that a verbal Nolle Prosequi be entered on the record; in other words the prosecution sought to stop the case. The Court informed the prosecution that in the event that the complainant continued with her evidence by saying; “that she could not recall” then on the evidence adduced so far; no properly directed jury could convict and it would be futile for the case to continue. It is also the trial Judges duty to stop the case if there is no realistic prospect of a conviction and I told Counsel that intended to do just that.
10. That said; the jury were brought back into open court; and they were formally instructed by the Court to find the defendant Not Guilty on a Judge directed order to “acquit” the defendant on this information which they did. The defendant was formally released on this charge; but the defendant remains in custody on another matter.
11. Counsel for the defendant sought leave to apply for bail however the Court declined to hear an oral bail application at this stage. That would appear improper because [a] the Court had no file and [b] the Court is unaware of what other charge[s] the defendant faces [c] the prosecutor has no file; and; if there is another file alleging the commission of any further offences; then have those offence[s] allegedly been committed whilst the defendant was free on bail for this particular offence? Counsel was told he was free to file an application for bail in the normal way.
JUDGE OF THE SUPREME COURT