Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 11 of 2012

Smith v. Regina (CL-AP 11 of 2012) [2014] TCACA 3 (30 January 2014);

Law report citations
Media neutral citation
[2014] TCACA 3
Coram
Zacca, P
Mottley, JA
Ground, JA

IN THE COURT OF APPEAL OF TURKS AND CAICOS ISLAND

CRIMINAL APPEAL 11/2012

BETWEEN:

LINCOLN SMITH                                                                      Appellant

and

REGINA                                                                                    Respondent

Before:    The Rt. Hon Mr. Justice Zacca               -              President

The Hon Mr. Justice Mottley                                   -              Justice of Appeal

The Hon Mr. Justice Ground                                   -              Justice of Appeal

Appearances:

Ms. Lara Maroof for the Appellant

Ms. Joann Meloche, Director of Public Prosecution for the Respondent

Heard: April 13, 2013

Delivered:January 30, 2014

MOTTLEY, J.A.

[1] Following a trial before the Chief Justice and a jury, the appellant was convicted on 24 February 2012 of the offence of rape. The indictment alleged that, on 4 September 2010, the appellant, acting together with another, raped YARR (“YR”). On 23 April 2012 he was sentenced to a term of 9 years imprisonment.

[2]           At the conclusion of the appeal, we allowed the appeal, quashed the conviction, set aside the sentence and ordered that the appellant be retried. At that time, we promised to put out reasons for quashing the conviction into writing. These are those reasons. Since we have ordered a retrial we will refrain from commenting on the facts and will only do so where it is absolutely necessary.

[3]           The case for the prosecution was that in the early hours of the morning of Saturday 4 September 2010 at Butterfield Street, South Caicos the appellant, along with another person whose identity is unknown, had sexual intercourse with YR against her will. On the night of 3 September 2010, YR attended the night club known as Baller’s in South Caicos. During the early hours of Saturday morning, YR left the club alone and walked to her house. While opening the door to her house, someone grabbed her hair, took her keys from her, pushed her to the ground and slapped her on her face. She explained how the rape occurred. During the course of the investigation, she gave the police the panties she had been wearing at the time she had been attacked. Semen was detected in a stain found on the panties. The DNA found on these panties matched the DNA profile which had been obtained from the appellant. YR recognized the appellant as one of the persons who had attached her. She stated that the appellant was the same person who had previously broken down her door while she was at home in South Caicos with her boyfriend.

[4]           YR said that the appellant had visited her house previous to the morning of the rape. He came to the house and broke the door at the time when her boyfriend was present In cross examination of her boyfriend, counsel who appeared for the appellant below suggested to him that when the appellant came to the house he never said “cuz you're lucky you here with her because I was going rape and kill she. ” The boyfriend rejected the suggestion and insisted that the appellant did in fact make that statement. Counsel then went on to suggest to the boyfriend that “the only exchange that was said at that night was, sorry, my friend.” This suggestion was again rejected by the boyfriend who stated that the appellant did not say those words. Counsel went on to suggest that at the time the appellant left.

[5]           In his evidence, the appellant admitted that he had seen YR on the night of 3 September 2010. He stated that, in June or July 2010, he met YR at the Church Town Bar. He said that, on three occasions, he had a sexual relationship with YR prior to 3 September 2010. He described the relationship as “pay as you go sex”. He paid her $60, $40 and $40 on each occasion. On each occasion YR would ask for $100 but he would tell her that what he gave her was all the money that he had. He specifically denied ever visiting YR when her boyfriend was present. It is to be observed that this assertion was in direct conflict to the suggestion put by counsel to the boyfriend during cross-examination. Counsel had suggested that, on the night when the appellant came to the house, the only thing the appellant said “sorry, my friend”. Counsel did not put to the boyfriend or YR that the appellant never visited the house and that it was untrue to suggest that he did.

[6]           The appellant admitted that on 3 September 2010 he had a sexual encounter with the YR at about 10:00pm. He was at the East End Bar and, after he left and was walking outside, he met YR who suggested that they have sex. He told her he did not have any money. She said it did not matter. The appellant and YR went to her house where she performed oral sex on him which caused him to ejaculate. He stated that YR used the panties she had been wearing “to wipe up the mess”. She then put on clean panties. She asked him for $100. He reminded her that he had earlier informed her that he had no money. He nonetheless gave her $20; he then dressed and left the house.

[7]           In response to a question from counsel for the prosecution, the appellant conceded that he did not hear his counsel put to YR, when he was cross-examining her, the evidence which he had just given. He further conceded that he did not hear his counsel suggest to YR or her boyfriend that the appellant never went to the house. The appellant maintained that he never went to the house at any time when her boyfriend was there. He was adamant that he had given instructions to his counsel in keeping with the evidence that he had given. The appellant specifically denied breaking down YR’s door. In response to a suggestion from Crown counsel, he said that he was “not fitting up my story to match the evidence”.

[8]           At the end of evidence of the appellant the following discussion took place:

The Court:           In Mr. Smith’s defence, you have bought a case through the defence that YR have had consensual sex with your client on more than one occasion, on a paying basis, which suggests that she’s a prostitute.

If I understood your client’s evidence today, I may have misunderstood, but that’s the impression I get from this evidence. That was not put to YR. The question that arises is how that situation is dealt with by the jury because Yolanda Reyes has not had the opportunity to respond to the suggestion that she is a prostitute, that she had consensual sex with him on previous occasions and that at ten o’clock on the Friday night, she performed on Mr. Smith oral sex, which is why his DNA was found on samples taken from her. That seems to be your client’s evidence.

Mr. Harvey:        Yes, my Lord.

The Court:           It was not put to her. Now, I don’t know why it was not put. You may have decided for tactical reasons not to put it, or it there may another reason why you don’t feel obliged to follow the rule that anything which is going to be raised later should be put to the witness in cross-examination.

Mr. Harvey:        My Lord, that’s the rule I, yes - I - she can be recalled.

The Court:           No, that is the rule that you should have out to her, matters which were going to be raised in the defence. You did not put those matters and I don’t know why you did not put those matters and the question is, what should the jury be told? It is counsel’s job to put matters to the witness, and he did not. And therefore, an adverse interference be drawn?

Mr. Harvey:        Yes, my Lord, the evidence, my Lord, having been heard, I was concerned, after all the evidence was heard, primarily with just one small issue that related to the semen at that point in time. That was all—

The Court:           You should be concerned with much more than that because you did not put your client’s case to the witness.

Mr. Harvey:        I accept that, my Lord

The Court:         And some of your client’s case that you did put to the witness is a complete divergence to tour client’s evidence. You have presented a different defence case to the defence case given in evidence by Mr. Smith.

Mr. Harvey:        My Lord, can she be recalled?

The Court:         Well, first of all, I want to know why it is that you didn’t put the matter that you should have done to her in the first instance.

Mr. Harvey:        I was—I was—the defendant had, in fact, and when I spoke to him, he had informed me that there has, in fact, been a consensual relationship, but it was not during that particular period in which the prosecution was alleging. Remember that this may have taken place around three or four o’clock or something to that effect. And he said that earlier on in the night, he was in contact with her. Now, there was no sexual relationship — yes, the lady give him head, but he never ejaculated her and then —

The Court:         But you didn’t put to her the fact that you — you are alleging she’s a prostitute.

Mr. Harvey:       Well, my Lord, as I had indicated, I definitely didn’t want not even to use the word “prostitute.”

The Court:        All right. You didn’t put to her that she sold her body for money to strangers. Use different words, but, yet, you bring it out in your defence case.

Mr. Harvey:        My Lord, as I indicated, I was, in fact placed in a situation as to how did it incident as to how did his semen get on that white woman.

The Court:         Well, to make it simple, did you make a tactical decision not to ask her the questions which should have been asked in accordance with your instruction?

Mr. Harvey:       Yes, my Lord

The Court:         It was a tactical decision?

Mr. Harvey:        Yes—

The Court:         Then under those circumstances, it may well be that there’s no need to recall the witness.

Maybe it would be wrong to expect counsel to respond to that immediately. I think this needs careful thought. Defence counsel indicates he made a tactical decision not to ask the questions that one would normally expect to be asked of a witness in these circumstances. So the defence is saying that they made a tactical decision not to put the pay-as-you-go sex to the witness, not to put the oral-sex suggestion to the witness, and there is no explanation as to why the contrary defence case was put in relation to the encounter between Romel Harris and the words that were said or not said because that’s was — that’s on record.

The defence says it never happened, defence counsel through defence counsel through his questioning asserts it did happened, but it happened in a different form. You have to resolve that anyway. But if it was a tactical decision, then I imagine it’s perfectly proper for the jury to be asked the question, Why adopt that tactic? Draw your own conclusion.

I would rather you have a chance to think about it because it’s a very, very difficult point. And at the same time, you can, perhaps, investigate the practical aspect of recalling the witness, and please bear in mind, Friday is plead and directions day.

[9]           The above discussion appears to have taken place in the absence of the jury.

[10]         When the jury returned, the judge addressed the jury in the following terms:

“Yesterday the court finished the evidence for of Mr. Smith. This morning you were going to hear closing speeches. This morning I’ve discussed with counsel the question as to whether it would be proper to hear again for YR so the questions can be put to her that perhaps should have been put when she was here to begin with.

Only yesterday we head from Mr. Smith what his evidence was about what had happened and the length of time that he had know Ms. Reyes and the circumstances of his knowing her. It would have not escape your attention that she wasn’t asked about any of that, and in order for there to be a fair trial it may be that she should have asked about that so that you members of the jury can hear her response to those questions. ”

[11]         YR was then recalled and matters raised in the evidence of the appellant and which were not put to her when she originally gave evidence were then put to her by counsel for the appellant. The Chief Justice was correct in adopting this procedure. In Browne v Dunn [1894] 6 R 67 at page 76, Lord Halsbury said:

“In general a party is required to challenged in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. ”

The Appeal

[12]         The appellant had filed one ground of appeal in which it is alleged that the appellant’s right to a fair trial has been infringed by his defence being inadequately presented and, as a result an unfair adverse inference being drawn against him. In support of this ground, counsel submitted that counsel who appeared for the appellant below did not put the appellant’s case during his cross-examination of YR in accordance with the appellant’s instructions and putting forward contradictory defences. Counsel also submitted that, as a result, the appellant was subjected to adverse inferences arising from the failings of defence counsel in the presentation of the appellant’s case.

[13]         In respect of the first submission, counsel submitted that the appellant was inadequately represented which resulted in his right to a fair trial being infringed. He argued that, by not putting the defence to the witnesses in accordance with instructions, and by putting different and contradictory account to witnesses insofar as the alleged visit to the house and the breaking down the door he permitted or allowed adverse inferences to be drawn against the appellant arising from counsel’s conduct of the defence.

[14]         In support of this submission, counsel relied on an affidavit which was sworn by the appellant on 24 April 2013 and filed on 25 April 2013. The appellant expressly stated that he waived his privilege. In paras 3 and 4 of the affidavit the appellant stated:

“3. In preparing for the case, I saw Mr. Harvey on a number of occasions in the weeks leading up to the trial. I was on bail for the offence at that time. I told Mr. Harvey what my defence was to the allegation. My defence was exactly the same as I told the jury when I gave evidence at my trial I denied any involvement in any rape. I told Mr. Harvey about my prior sexual experience with Yolanda Reyes and that on the night of the 3rd September 2010 she had given me oral sex. I also denied that had ever broken down the door to Yolanda Ryes house or Romel Harris’ house.

4. I was not happy with Mr. Harvey’s representation of me. I realised from hearing what the trial Judge said that Mr. Harvey did not question the witnesses properly. He did not put my version of events to the witness properly. I feel that I did not get a fair trial because my attorney did not present my defence properly. ”

It should be noted that counsel who appeared below was afforded an opportunity to comment on the contents of the affidavit but he declined.

[15]         When the appellant’s counsel cross-examined YR he did not put to the witness that she and the appellant had engaged in a sexual relationship which he described as “pay-as-you-go” - in other words he paid her for sex on three occasions prior to 3 September 2010. Counsel did not put to her that on the night of 3 September 2010 he had oral sex with YR who used her panty to clean up the mess which his ejaculation had made. This as an important piece of evidence as it would explain the presence of the appellant’s DNA on the panty belonging to YR. These were essential suggestions which ought to have been put to YR as these issues were fundamental to the defence.

[16]         Both YR and her boyfriend gave evidence that the appellant had broken down the door of her house. The boyfriend said that the appellant said that he intended to rape and kill YR Counsel suggested that the appellant did not say that but only said “sorry my friend”. This was inconsistent with the evidence which the appellant gave. The appellant denied that he ever went to the home of YR when her boyfriend was present.

[17]         The Director of Public Prosecution submitted that it was the duty of counsel for the defendant to put the defence to the witnesses for the prosecution in accordance with his instructions. The Director further submitted that defence counsel admitted that he had made a tactical decision not to out the defence based on his instruction to YR?

[18]         In support of this proposition the Director relied on passages from Phipson on Evidence 17th Edition at paras 12-12 and 12-35 where it stated:

“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point.

As a rule a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share, e.g. if the witness has deposed to a conversation, the opposing counsel should put to the witnesses any significant differences from his own case. ”

[19]         On these facts four issues arise for the consideration of the Court:

(i)            What were the instructions given by the appellant to his counsel who appeared at the trial?

(ii)           Did his counsel carry out those instructions when conducting his cross examination of Y?

(iii)          If he failed to carry out those instructions, did it have any adverse effect on the trial of the appellant?

(iv)          If the failure did not have an adverse effect in the trial was it such that it such that it may be said that the appellant did not have a fair trial as guaranteed by section of the constitution?

The Court has not framed these issues in any way which calls into question the competence of counsel. Indeed, when asked by the Chief Justice whether he had made a tactical decision not to ask YR the questions which should have been put in accordance with this instruction, counsel responded that it was a tactical decision. However, it should be noted that counsel never informed the Chief Justice that the appellant was a party to this tactical decision and that the decision was made after consultation with the appellant.

[20]         The issue of counsel’s conduct of a case engaged the attention of the Court of Appeal of England in R v Dean Clinton [1993] 97 Cr. App. R. 320. In the head note of that case it is stated:

‘'Where defence counsel in a criminal trial makes decisions in good faith and after proper consideration of the competing arguments and where appropriate after discussion with his client, such decisions could not render the verdict unsafe or unsatisfactory, not could allegations of counsel’s incompetence amount to a material irregularity. Conversely, where counsel’s decisions were taken either in defiance of, or without proper instructions or against the promptings of reason or good sense, it might be open to the Appellate Court to set aside the verdict by reason of section 2(1)(a) of the Criminal Appeal Act 1968. The approach to be taken was not to assess the degree of the alleged incompetence, but to seek to assess its effect on the trial and the verdict according to the terms of the subsection. ”

[21]         In R v Brendan Brands Brian Nangle [2001] Crim L.R. 506 CA, Turner J made the following observations at paras 63 and 64:-

“63. The case was presented as one in which there had been “flagrant incompetence” by the legal advisers, notably Hallinans and trial counsel. Although we have found that certain aspects of their conduct of the case were deficient, it would be an abuse of language to describe those failings as approaching, let alone amounting, to “flagrant incompetence”. 64. In any event, in the light of the present requirement under the European Convention on Human Rights “flagrant incompetence” may no longer be the appropriate measure of when this Court will quash a conviction. What Article 6 requires in this context is that the hearing of the charges against an accused shall be fair. If the conduct of the legal advisers had been such that this objective is not met, then this Court may be compelled to intervene. We would add that since we have not persuaded that such deficiencies as they may have been resulted in any unfairness to the appellant, not yet imperiled the safety of his conviction, it is not strictly necessary for us to consider what level of incompetence would have to exist before the Court could be satisfied that there had been a relevant breach of the provisions of Article 6(1).”

[22]         In R v Joshil Thakrar [2001] EWCA Crim 1096, Keene LJ at paras 34 and 35 stated:

“34. We have already indicated that we find that the appellant’s solicitors did fall below the level of reasonably competent solicitors in the way in which they prepared this case for trial on behalf of the appellant. That however is not enough to determine this appeal against conviction. The mere fact that an appellant’s solicitors may have failed to carry out their duties to the appellant in a proper manner does not itself mean that a conviction is automatically unsafe. Nor is a conviction to be quashed as a means of expressing the court's disapproval of the solicitor's failures. The test is whether, in all the circumstances, the conviction is safe. Nonetheless, if such failures have prevented an appellant from having a fair trial, within the meaning of Article 6 of the European Convention on Human Rights, that will normally mean that the conviction is unsafe and should be quashed: Togher [2001] CLR 124.

35. Therefore the first question is whether the appellant received a fair trial or whether such a trial was prevented by the failings in preparation on the part of his solicitors. Such an issue is to be determined by considering the proceeding as a whole, as the jurisprudence of the European Court of Human Rights makes clear, and it follows that one cannot confine one's attention merely to the solicitor's preparations in isolation. As this court said in Nangle [unreported but dated 1 November 2000] if the conduct of an accused's legal advisors has been such that the objective of a fair trial is not met, then this court may be compelled to intervene. ”

[23]         This issue eventually came before the Privy Council in Ann Marie Boodram v The State [2001] UKPC 20:

“Since the judgment of the Court of Appeal in the present case it has qualified its decision in Boodram. In Bethel v The State (Cr. App No. 31 of 1996) a differently constituted Court of Appeal (de la Bastide CJ, Sharma] A and Jones JA) referred to the earlier judgment. On this occasion the judgment was given by the Chief Justice. He observed that "when the conduct of a case forms the ground of appeal, we ought to focus on the impact which the faulty conduct of the case has had on the trial and the verdict rather than attempt to rate counsel's conduct of the case according to some scale of ineptitude''. But, speaking in the context of the earlier decision of the Court of Appeal in Boodram, the Chief Justice mentioned a qualification. He said:

“There is, however, one important proviso which we would attach to this approach. It is conceivable that counsel’s misconduct may have become so extreme as to result in a denial of due process to his client. In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance, for whenever a person is convicted without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed. It is not difficult to give hypothetical examples of how such a situation might occur. An obvious example would be if the accused had the misfortune to be represented by counsel whose judgment was proved to have been impaired by senility, drugs or some mental disease. Another example closer to the facts of this case is if counsel conducted the defence without having taken his client's instructions. This is simply another application of the basic principle that if there is a fundamental flaw in the conduct of a trial, the conviction which results from it cannot be allowed in any circumstances to stand. ”

On the appeal to the Privy Council counsel for the State did not challenge the correctness of this qualification. It will, however, be necessary to return to it. ”

[24]         The Privy Council again dealt with the issue of defence counsel handling of the defence in Teeluck and John [2005] UKPC 14. In delivering the opinion of the Board, Lord Carswell said:

38. It should now be regarded as established law that in some circumstances the mistakes or omissions of counsel will be a sufficient ground to set aside a verdict of guilty as unsafe. Their Eordships feel obliged, however, to issue a reminder of the remarks made by the Board in Bethel v The State (1998) 55 WIR 394, 397 that ordinarily they will not even entertain a ground of appeal based upon allegations of incompetence by counsel when raised for the first time before the Board. In the present case they are prepared to do so because of the importance of the issue to the appellant John and because, on account of the frankness of his former counsel in furnishing information, they are in a good position to determine the issue without having to deal with any conflicts of fact.

39. In Sealey and Headley v The State [2002] UKPC 52 at paragraph 30 their Eordships stated, citing R v Clinton [1993] 1 WLR 1181 and R v Kamar The Times, 14 May 1999:

“Whilst it is only in exceptional cases that the conduct of defence counsel can afford a basis for a successful appeal against conviction, there are some circumstances in which the failure of defence counsel to discharge a duty, such as the duty to raise the issue of good character, which lies on counsel... can lead to the conclusion that a conviction is unsafe and that there has been a miscarriage of justice...”

There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client. Apart from such cases, which it is to be hoped are extremely rare, the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict rather than attempting to rate counsel's conduct of the case according to some scale of ineptitude: see Boodram v The State [2002] 1 Ct App R 103 at para 39;Balson v The State [2005] UKPC 2; and of Anderson v HM Advocate 1996 JC 29.”

[25]         The observation of Lord Rodger of Earlsferry in Ebanks v. R. (The Cayman Islands) [2006] UKPC 16, is apposite. His Lordship stated at para 14:

‘'The affidavit made by Mr. Ebanks shows that he really complains about two separate but inter-related features of the conduct of his counsel at the trial. The first is that, although he wanted to give evidence in order to say, in particular, that he had not made the statement attributed to him by the police witnesses, counsel in effect prevented him from doing so. The second is that counsel did not cross-examine the two police witnesses to the effect that they were lying and that the appellant did not make the statement to which they spoke in evidence. On behalf of the Crown Mr. Perry did not dispute that, if counsel had defied Mr. Ebanks’ instructions in either way, he would have been guilty of professional misconduct which would in effect have led to a denial of due process, with the result that the verdict would have to be quashed: R v Clinton [1993] 1 WLR 1181, 1187H — 1188A per Rougier J and Boodram v The State [2002] 1 Cr App R103,118 —119, per Lord Steyn. ”

[26]         In the New Zealand case of R v McLoughlin [1985] 1 NZLR 106 the appellant had been charged with rape. His defence was a complete denial. He intended to call two witnesses in support of his alibi. His counsel sought his approval not to call the witnesses on the ground that their evidence appeared to be unreliable. The appellant did not accept the advice. Counsel took the decision to no longer to rely on the defence of alibi. Counsel took it upon himself to rely on the inconsistent defence of consent. The appellant was convicted. His appeal against conviction was allowed. Hardie Boys J, who delivered the judgment of the Court, said at p 107:

“It is not for this court to question counsel's judgment about that, or to comment on the evidence ourselves. But the plain unvarnished fact is that counsel has no right to disregard his instruction. Hollowing any advice he thought it proper to give his client; his duty was either to act on the instructions he then received or to withdraw from the case…………But certainly counsel may not take it upon himself to disregard his instructions and then conduct the case as he himself thinks best. It is basic in our law that an accused person receive a full and fair trial that principle requires that the accused be afforded every proper opportunity to put his defence to the jur………….. The present appellant has been deprived of that opportunity and justice has therefore been denied to him. ”

[27]         In Anderson v HM Advocate 1996 SLT 155 the Lord Justice General (Hope) observed:

“..the purpose of that representation is to enable his defence to be presented to the court. If the system breaks down to such an extent that the defence is not presented, it would be a denial of justice for the court not to intervene in order to set aside the conviction and order a new trial. ”

[28]         This Court would add that even if the defence is presented but not presented adequately so that it results in the accused being prejudiced to the extent that he is denied a fair trial an appellate court would be required to quash the conviction and order a new trial.

[29]         It is not disputed that counsel for the appellant did not in his original cross examination of YR put to her the essential elements of the defence. It was of paramount importance that the appellant provide to the jury an explanation for the presence of his DNA on YR’s panties. To this end, one of the matters which counsel ought to have canvassed in his cross examination was the evidence which the appellant would be giving. The essence of the defence was that he had prior sexual encounters with YR for which he paid. He described those encounters as “pay-as-you- go”. In addition, counsel ought to have put it to YR and her boyfriend that the appellant not only did not say the words attributed to him but never visited the home. Instead, counsel said:

“ I'm going to suggest to you that the only exchange that was said at that night was, sorry, my friend.”

[30]         In light of the failure of counsel to put the defence to YR, counsel for the prosecution began her cross examination by asking the appellant whether he had heard his counsel put his “story” defence to YR. The imputation is that had he given his lawyer instructions in accordance with his evidence, his lawyer would have put these matters to the YR during his cross-examination of her. Indeed it would appear that it was suggested to the appellant that he did not give instructions to his counsel in this matter. Later in cross-examination, counsel suggested to the appellant that he was fitting up his story to match his evidence — in other words he was now changing his story to answer the evidence that had been given. This was of particular importance in view of the evidence relating to the presence of his DNA on YR’s panties. It was a clear suggestion by counsel for the prosecution that the appellant was concocting his evidence particularly the evidence of oral; sex on the evening of 3 September to explain the presence of his DNA.

[31]         In his affidavit, he stated:

“...I told Mr. Harvey what my defence was to the allegation. My defence was exactly the same as I told the jury when I gave evidence at my trial. I denied any involvement in any rape. I told Mr. Harvey about my prior sexual experiences with YR……and that on the night of the 3rd September 2010 she had given me oral sex. ”

[32]         In discussion with the Chief Justice, counsel accepted that he did not put his client’s case to YR. The Chief Justice also pointed out to counsel that in some respects the case that he did in fact put was in complete divergence to his appellant’s evidence. In this regard the Chief Justice was referring to the suggestion that when the appellant went to YR’s house he said sorry when in fact the appellant said he did not go there.

[33]         The Chief Justice observed that counsel for the defence had made a tactical decision not to ask the question which one would have expected to have asked YR The tactical decision was not to put the pay-as-you-go sex with Y and not to put the oral sex suggestion to her. The Chief Justice further pointed out that there is also no explanation why a contrary version was put in relation to the incident about the breaking down of the door. The appellant stated it never happened while defence counsel asserted it did happen but in a different form.

[34]         Counsel never stated that at any time he consulted with the appellant and informed him what he intended to do. In fact, it is reasonable to infer from the record that counsel never discussed the matter with the appellant and hence never apprised him of his intention to depart from his instructions.

[35]         It is probable that the jury could have been influenced by the suggestion of the prosecution that the appellant was only concocting the evidence about pay-as-you-go sex and in particular the incident of oral sex on the night of 3 September 2010. If the jury accepted this suggestion it would almost certainly give them cause to reject this defence.

[36]         Counsel for the appellant submitted that the failure of defence counsel permitted an adverse inference to be unfairly drawn against the appellant. The judge himself recognized that the failure of defence counsel to put the defence to YR may well have caused an adverse inference to be drawn by the jury.

[37]         Having recognized the possibility of adverse inference, the judge in the view of the Court ought to have warned the jury. In his summation the Chief Justice said:

''I understand that you may have conceptual difficulty with some of the evidence because of some of the questions put in cross examination by counsel for Mr. Smith. In evidence from Mr. Smith you have heard that he maintains that he never visited Y’s room when her boyfriend was there. In cross examination of the boyfriend it was suggested that certain words were not used by that some words alleged by the boyfriend to have been used were in fact used. If that were the case, as the question posed suggests, them Mr. Smith was there. That is two different stories from the same defendant. Because the witness Yolanda Ryes was recalled after Lincoln Smith gave his evidence, the assertions before the court made by Lincoln Smith were put to her. That gave her an opportunity to hear what Mr. Smith was saying about her and you have now heard her response to those suggestions. You will, as you do not need to decide about within that evidence. It will help you determine whether you can accept or reject the evidence of Mr. Smith on those points and may assist you in coming to a conclusion about whether the Crown have proved their case beyond a reasonable doubt. ”

[38]         Earlier we referred to the issues raised in this appeal (Para 19 above). In respect to issues (i) and (ii), the appellant in his affidavit stated that he gave instructions to his counsel concerning his prior sexual encounters with YR and in particular the encounter which he had on 3 September 2010 including the incident of oral sex. Further, he stated that he told him that he had not broken down the door. This affidavit was sent to counsel who appeared below with a request for him to comment. No response was received from him. In the discussion with the Chief Justice which took place at the conclusion of the evidence of the appellant, counsel admitted that the appellant did tell him that “the lady gave him a head but he never ejaculated...” In respect of these issues the Court is forced to conclude that the appellant did give to his counsel below instructions as set out in his affidavit.

[39]         In respect to issues (iii) and (iv), for the reasons set out above, we have concluded that the appellant’s right to a fair trial has been prejudiced.

[40]         Under section 7 (1) of the Court Appeal Ordinance Cap 2.01, this Court is empowered to allow an appeal on the ground that there was a miscarriage of justice, In TKWJ v R (2002) 212 CLR 124 McHugh J stated :

“74. The role of counsel in a criminal trial is so important that it hardly needs argument to conclude that his or her conduct of the trial can bring about a miscarriage of justice. Tuckiar v The King - where counsel's statement and conduct in front of the jury reinforced the presumption of guilt arising from the judge's charge - is a well- known, if extreme, example. Where an appellant contends that the conduct of his or her counsel has caused a criminal trial to miscarry, however, the appellant carries a heavy burden. This is a consequence of the adversarial nature of our legal system and the role and function of counsel. Criminal trials are not inquisitions. They are contests “in which the protagonists are the Crown on the one hand and the accused on the other”. Ordinarily, a party is held to the way in which his or her counsel has presented the party’s case. That is because counsel is in effect the party’s agent. Counsel is “ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted”. The discretion retained by counsel in the running of a case is very wide. Counsel may even settle a case without seeking the client's consent. Blackburn J noted in Strauss v Francis that “the apparent authority with which [counsel] is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause”. In Strauss- where the issue was whether counsel had authority to consent to the withdrawal of a juror, notwithstanding the client's dissent - Mellor J added:

“No counsel, certainly no counsel who values his character, would condescend to accept a brief in a cause ... without being allowed any discretion as to the mode of conducting the cause. And if a client were to attempt thus to fetter counsel, the only course is to return the brief. ”

75. But how does a court of criminal appeal determine whether counsel's conduct of the trial has led to a miscarriage of justice? By what standards is counsel's conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.

76. In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsels conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel's conduct might have affected the result.

77. But in other cases - perhaps the majority - the conduct of counsel - although irregular - will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person. ”

[41]         In Anderson v HM Advocate 1996 SLT 155 at 165 the Lord Justice General (Hope) observed:

“[Professional incompetence] can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused defence was not presented to the court. ”

[42]         In R v S [1998] 3 NZLR 392 at 394-395 the Court of Appeal stated:

“In order to establish a miscarriage of justice an appellant must show that the mistake could well have had a significant prejudicial effect on the outcome of the trial. ”

[43]         We stated earlier that what happened during the course of the trial prejudiced the appellant’s right to a fair trial. The Court is mindful of the observation of Lord Chief Justice Judge in Peach Donovan and John Kafunda v R [2012] EWCA 2749:

’It is a hallmark of our traditions and the principle of administration of criminal justice that an unfair trial cannot produce a safe conviction. ”

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Zacca, P.

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Mottley, J.A.

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Ground, J.A.