IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS
STEVE REMY GARDINER
Sir Elliott Mottley, President
The Hon. Mr. Justice Stollmeyer, Justice of Appeal
The Hon. Mr. Justice Adderley, Justice of Appeal
Tamika Grant for the Appellant
Kellee-Gai Smith for the Respondent
Heard: March 8, 2019
Delivered: September 26, 2019
1. Following a trial before Madam Justice Joyner and a jury, Steve Remy Gardiner, the appellant, was convicted of rape. He was charged on an information containing two counts but was found not guilty of burglary. He was sentenced to a term imprisonment of 8 years. At the conclusion of the hearing of the appeal, we dismissed the appeal and affirm the conviction and sentence. At that time we promised to put our reason for so doing into writing. We now hand down these reasons.
2. In his first ground of appeal the appellant alleged that the jury's verdict of guilty on the count of rape was inconsistent with the verdict of not guilty on the count of burglary and this inconsistency indicated that the jury had not reasonably addressed their minds to the facts.
3. In support of this ground, counsel for the appellant submitted that the verdicts were inconsistent because the rejection of the burglary count by the jury could only come about if the jury found that the appellant was not a trespasser but entered the premises at the invitation of SR, the virtual complainant. Counsel argued that the verdict indicated that the jury accepted the appellant's version of events that the SR had let the defendant into the house. However, he said that this conflicted entirely with the evidence of the SR and resulted in a logical inconsistency on the evidence.
4. In support of this submission, counsel relied on R v Durante  3 All ER 962. She submitted that the court in Durante held that there was a clear inconsistency in the verdict in circumstances where the defendant was indicted on two counts and his defence on both counts was that he was too intoxicated to form the necessary mens rea for the offence. He was found not guilty on one count but guilty on another. Counsel stated that the appellant's case in this matter was that the SR was always a willing participant in everything, from the appellant's entry into the house to her consenting to the intercourse which followed. Counsel submitted that the defence to both counts was essentially the same. Counsel contended that it was peculiar that the jury would speculate as to the existence of a withdrawal of consent or change of mind and convicted the defendant on that basis.
5. On the other hand, counsel who appeared for the Crown submitted that the judge in her summing up reminded the jury that they had to consider separately the evidence with regard to each counts, and that the counts were separate and had be treated as such. Counsel stated the judge had reminded the jury that they had to be sure of the appellant's guilt on each count. It was for the prosecution to prove its case in relation to each count. Counsel argued that it was for the jury to look at the evidence in respect of each count separately and to determine whether they were satisfied of the guilt of the appellant.
6. In Durant's case, the court having determine that the verdict in the case were remarkably inconsistent, posed the question of what should be the consequence of the inconsistency, Edmund Davies LJ stated:
“What is the consequence of such an outcome? As recently as November 1971, in R v Drury, to which Stephenson LJ and I were parties, this court held that there is no general rule that the mere fact that a jury has returned inconsistent verdicts on counts in an indictment means that the Court of Appeal is obliged ex necessitate to quash the convictions. We went on to say ((1971) 56 Cr App Rep at 105):
'There are cases which in our view can arise when it would be proper for this Court to say that, notwithstanding the inconsistency, the conviction or convictions must stand. It all depends upon the facts of the case.”
7. Edmund Davis, Lord Justice referred to the case of R v Hunt  2 All ER 1056, in which Lord Parker CJ cited from the unreported case of R v Stone which was tried in 1954 and quoted what he described as a useful passage from the judgment of Devlin J in regard to the approach that the court should adopt in cases inconsistent verdicts.
The Lord Justice referred to page 1058 of Hunt's case where it is stated:
'When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.”
Edmund Davies LJ pointed out that the Court did not know:
“...whether this Court of Appeal has ever previously formally adopted the view expressed there by Devlin J that the burden is on the appellant to show that verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval and adoption of that proposition.”
8. In Regina and (1) David Fanning; Regina and (2) Stuart Robert John Kerner; Regina and (3) Tomas Osianikovas and Kasparas Smilginis; Regina and (4) Victor Lucas De Jesus  EWCA Crim 550, the Court of Criminal Appeal, having reviewed a number of authorities in relation to consistent overacts, concluded:
“15. In Stone, Devlin J set out a clear test in cases where inconsistency between verdicts is advanced as a ground of appeal. That was applied in Hunt (1968) and formally adopted in Durante (1972) as the determinative test for setting aside a conviction as unsafe (and, as it was between 1966 and 1995 unsatisfactory). It is a test that is clear; it can be applied by this court without any further elaboration
16. It also accords with and does not usurp the constitutional position of the jury. As is apparent form the judgment of Scarman LJ in Segal (which we have set out at paragraph 9), the passage in the judgment of Lord Bingham in Martyn W (which we have set out at paragraph 4.ii)) and the judgment of the High Court of Australia in McKenzie (which we have set out at paragraph 11) the jury is the body which is entrusted under our constitution to reach a verdict that must be based on evidence, even though on rare occasions the verdict may not be in the eyes of lawyers flawlessly logical. The merit of the test established by Devlin J is that it recognises that constitutional position whilst providing the necessary safeguard for a defendant.
17. It is not clear why in the line of cases beginning with Trundell, to which we have referred in paragraph 13, a much more elaborate formulation evolved. Few if any of the judgments were reserved and it seems from a reconsideration of many of them that the court was either seeking to explain their reasoning in relation to the specific facts of a case or to summarise their understanding of the law without in any way seeking to change it.
18. It is essential for the sound development of the Criminal Law and to prevent over complication that it should rarely be necessary for a court to reformulate or add a gloss to well established law (as was the case in relation to inconsistent verdicts after the decisions in Stone, Hunt and Durante). However where a court thinks it necessary to summarise the law or to add a gloss that might assist in the decision in a particular case, its judgment should not be treated in subsequent cases or in the textbooks as a new formulation of the law, unless the court makes it expressly clear in the judgment that a change or development of the law is being made. In 1994 it was possible for Professor Sir John Smith to say, as he did in respect of Trundell (see paragraph 13.ii) above) that it would have been better if a case had not been reported; today each decision of this court is made available electronically. It is therefore of the greatest importance that the observations we have made in this paragraph are given the necessary attention.
19. In our judgment, the court should return to the clear law set out in Devlin J's test formally adopted in Durante and apply it rather than the reformulation as now summarised in Dhillon (as qualified as we have set out in two further judgments). We consider that there was no sound reason for departure from the law as established in Durante. The test did not need elaboration, but rather careful application without elaboration to the circumstances of each case. In any event, as Professor Sir John Smith pointed out in his commentary on Harrison, it is difficult to see how a legitimate chain of reasoning can justify a logical inconsistency.”
9. In respect of the burden of proof on appeal to prove that the verdicts were inconsistent, the Court of Appeal stated in Flanning's case that the burden of showing the verdicts cannot stand is upon the appellant. In rejecting a submission that the burden should be on the Crown, the Court of Appeal stated:
“25... it was rejected by Lord Phillips CJ in R v Mote  EWCA Crim 3131,  Crim LR 793 at paragraph 49-50:
“50. We question whether it is helpful to adopt a staged approach to the burden of proof in this way. The starting point is that the burden is on an appellant to persuade the Court of Appeal that a verdict is unsafe. Where he seeks to do this by showing that acquittals on some counts are inconsistent with convictions on others he has to persuade the court that the nature of the inconsistencies is such that the safety of the guilty verdicts are put in doubt. That question will turn on the facts of the particular case and it is not safe to attempt to formulate a universal test.”
10. Later, in Fanning's case, the Court of Appeal adopted the approach which was emphasized in R v C  1 WLR 966,  EWCA Crim 2581, by Sir Igor Judge PQB., In giving the judgment of the court at paragraph 28:
“ 28 The verdicts of a jury are not to be treated as inconsistent simply because the jury is sure about some parts of a complainant's evidence, but unable to be sure to the requisite standard about others. Here the jury was sure about the reliability of the complainant's evidence, where it was provided with a measure of independent support, but unprepared to be sure where it was not. This was an entirely rational approach, properly seeking to give the benefit of any doubt to the defendant. The verdicts are not logically inconsistent.”
11. In order to determine whether the verdicts were inconsistent, it is necessary to examine the evidence relating to the burglary count. Counsel for the appellant relied on the element of the appellant not being a trespasser. This approach ignored the other element of the offence of burglary. The Court considers that it is necessary to set out verbatim the evidence of the cross-examination relating to stealing of the money which was one of the essential element of the offence of burglary.
Q. Now, tell me, when was the last time you physically had eyes on the money, that you saw it?
A. When was the last time?
Q. You saw the actual cash 4,000, 4,500?
A. The last, the same night I work cause I put my tips that was made that night in my purse.
Q. So are you saying that when you put your tips in the purse you saw the money was still there?
A. Yes, sir.
Q. All right. And when you were giving your statement, you told my learned friend when you was describing what had happened, that you thought the person that was pushing on you was your, was the person you were seeing, your boyfriend, correct?
A. At that (inaudible.)
Q. Now, you told us that you told your assailant that you had money and he, the person who you said attacked you, allegedly attacked you, and he told you that he was not interested in your money, correct?
A. I'd offered him and he said he was not, he didn't want it.
Q. He say, "I don't want your money"?
A. He said, "I don't want your money."
Q. At any time did you see this person go to your purse, in your bag?
A. Well, like I said, he came to me first, so I don't know how long he probably had been in there before he came to me.
Q. Now, you told us that you -- what time did you left for the hospital?
A. What time?
Q. Did you left your house, the police took you to the hospital?
A. What time I left the house?
A. I can't say exactly what time, but after it happened, I called the police and they came and they took me there.
A. They came there like after, probably after 2:00.
Q. And you told us that you didn't check your purse at that time before going to the hospital, correct?
A. No, because the officer told me do not touch anything.
Q. You told us that you returned to the hospital -- from the hospital, sometime after is 11:00?
Q. Later that day. The police had left with you, when you leave to go to the hospital, any police stayed at your house? Had any officer stayed at your house?
A. No officers stayed at my house, they drop me at the hospital.
Q. So between the hours of approximately 2:00 to 11:00, you could not give an account for who may have gone into your purse, correct?
Q. Between the hours of 2:00 to 11:00, you cannot say what happened to your purse, if anything, can you?
A. Well, the officers had already check and they told my son and my brother and whoever was there, do not go into the house, but I told them that my little kids had to go into the house to get clothes, because they had to go to school the morning.
Q. So we know persons went into the house, correct?
A. I didn't hear you.
Q. We know persons went into the house?
A. When I left, the officer tell me he would allow someone to go back there, but I don't know if they went, but most likely, I believe they went, because I told them that my son and my daughter had to go to school that morning.
Q. Simply saying you could not give an account of what happened at your house while you were at the hospital, correct?
A. I couldn't, because I was not there.
12. This was the evidence which the jury had to consider in respect of the stealing of the money. In the circumstances, it may well be that the jury was not satisfied that, even though the money was missing, SR was in a position to state who took it. This is demonstrated when she agreed with the suggestion in cross-examination by counsel for the appellant that she could not give an account of what happened at her house when she was at the hospital. This would mean that she was not in a position to state what happened to the money.
13. Earlier in her summation, the judge explained what was meant by the offences of rape and burglary. She pointed out to the jury what were the elements of the offence of rape The judge told the jury:
“And Rape, basically, is sexual intercourse without consent. I will go into that in more detail. But where it is necessary, the law says, to prove sexual intercourse it shall not be necessary to prove the completion of intercourse by the emission of seed, that's ejaculation. But it shall be deemed complete upon proof of penetration only. Even the slightest penetration of the male penis into the female vagina will be sufficient. The law is that you may convict on the complainant's evidence only as long as you feel sure of the Defendant's guilt. The law is that there does not need to be any independent evidence to support the complainant's evidence.
Without consent: The Prosecution has to prove that there was no consent, and this is the important ingredient of Rape. Now, what does the Prosecution say? I will just give you that and then give you what the Defence is saying from now, yes. All right. The Prosecution is saying that the Defendant used fear, threaten Miss Stephanie Forbes saying he would kill her and her family if she screamed or made any alarm. She told you that she was in fear of her life, and she also feared for what he would do to her son and the rest of her family. You may well find that Miss Stephanie Forbes was in so much fear that she submitted to the Defendant, but remember that submission is not consent. Consent is to be given voluntarily. If a woman submits through fear of the sexual intercourse, she has not consented to sexual intercourse, please get that clear when you come to consider the evidence. So rape is without her consent. Miss Stephanie was fearful for her life, this is the evidence that goes to without her consent. Ms. Stephanie was fearful for her life and for the lives of her children and other family members as Defendant was repeatedly threatening to kill her, her sons, and the rest of her family while poking some object in her side and penetrating her vagina with his penis. Remember she said she didn't know what the object was. Sexual intercourse, he puts his penis in my vagina. And, indeed, the Defendant is not denying, he is not denying the sexual intercourse. He is saying there was sexual intercourse, but she consented. So the issue you have to decide is: Was there consent? Date of sexual intercourse was the 1st of March 2017.
Remember the slightest degree of penetration is sufficient, and there need not be ejaculation, yes, completion is not necessary. That's Rape just in a nutshell.”
14. When dealing with the count of burglary, the judge explained the element of the offence. She told the jury:
“I will get back to that, because we have to go on to the second charge, the Burglary. And he is charged under 11 (1)(b) of the Theft Ordinance, which says having entered any building or part of the building as a trespasser he steals anything in the building or that part of it. Okay. So first we have to get to trespasser. Trespasser basically means he entered without permission. There is no need to prove a breaking in. In the old law you have to prove that he broke a window or broke a door or put some part of his body inside the place. All we need in new law here is he entered without permission. Nobody invited him. He just came in without permission. He steals. What is stealing? Stealing is that he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property. Dishonestly, I will tell you what the law says about dishonestly, a little further on. But appropriates means he took it. He took it. Property includes money in the form of cash and/or cheque, it includes other things, too, any kind of property, but in this case cash and cheque.
Belonging to another: Belonging to Miss Stephanie Forbes. 4,000 from the Asue, 498 from the wages and tips. The amount of the tips wasn't given, but you can rest assured for the sake of the case it's proved that it is 4500. We have 4,498, and we are not going to quibble over two dollars, yes. So the 4500 is there. With the intention of permanently depriving Ms. Stephanie Forbes of it: Remember she said it was all gone, she never saw the money again. If you find that it was the Defendant who took it, you have to decide. Now, what is dishonestly. How do you describe if an accused does an act dishonestly. You must consider all the circumstances in which the Defendant's behavior occurred, including what Defendant knew or believed to be the factual situation. Have that in your mind when you consider whether in the light of any understanding of the situation he had or may have had, you are sure that Defendant's behaviour was dishonest by the standard of ordinary decent people, that's the standard the law says you must use, ordinary decent people.
If you are sure it was dishonest, the Prosecution would have proved that the Defendant acted dishonestly, and your verdict will be guilty whether or not the Defendant personally thought his behaviour was dishonest. But if you are not sure that the Defendant's behaviour was dishonest by those standards, the Prosecution would not have proved that the Defendant acted dishonestly, and your verdict should therefore be not guilty. If you find out -- back to the case now. If you find that it was the Defendant who came in the apartment and took the cash and cheque and the tips from Miss Stephanie Forbes' purse, you may well find that the Defendant took them dishonestly, because that is not normal behaviour. And anybody, ordinarily decent people will say, but that's not right, that's not right, that's dishonest. If you find it was he. All right. So now hear the two parts what the Prosecution is saying and what the Defendant is saying. The Prosecution is saying this Defendant entered Miss Stephanie Forbes apartment through her bedroom window, and when he did this, he did this as a trespasser, he was not invited to the apartment by her or her son, John. He entered and he stole the money from her purse, and then he went into her bed where she was sleeping, removed her work pants, covered her mouth with his hand, pushed something in her side, and while threatening her with death to herself and her family, pushed his penis in her vagina from behind and started to rape her. Then he dragged her outside of the apartment, put her over a big stone in the yard and finished raping her, and then he ran away. That's it in a nutshell.”
15. The judge went on to inform the jury:
“You need to consider the evidence with regard to the two counts. Count One is the rape, and Count Two is the Burglary. These are separate counts, and must be treated by you as such. Look to see what is alleged in the Particulars of Offence, and see if the Prosecution has proved it so you feel sure on each count. You have to look at the evidence separately, for each count.
So the issue here, the live issue is the consent. Because Steve Remy Gardiner there, the 1st of March 2017 is proved, Wheeland Providenciales, Turks and Caicos Islands, sexual intercourse is not contested. Mr. Gardiner said yes, I had sexual intercourse with Stephanie Forbes. She saw there. She is a female she has had children, what you have to decide is without her consent. That's the issue.
In the Burglary now. The Particulars of Offence that you Steve Remy Gardiner on Wednesday the 1st March, 2017 at Wheeland, Providenciales, Turks and Caicos Islands, did enter as a trespasser a dwelling house owned by Stephanie Forbes, and stole there in U.S. dollars 4500. It says "in cash." That should have been amended in cash or cheque, the property of Stephanie Forbes. But that doesn't really matter, $4,500. Yes.
You see it there. He is Steve Remy Gardiner, the 1st of March 2017, Wheeland, Providenciales, did enter as a trespasser. So you have to figure out if he entered as a trespasser, first of all. He said he was invited to the place, yes. It's a dwelling house in an apartment owned by Stephanie Forbes. She is the one who is paying rent, although a Mr. Pfaff come here and said he owned the whole building, don't mind that. It is who is the occupier of the apartment, owned by her in law, and stole therein 4500, and we take out the cash. I can amend that under the law. The cash, and say 4500, property of SF yes. So you decide if it was the Defendant. He said he was in the apartment, but he said I didn't take any money. It is a matter for you. Because you have heard questions about no fingerprints
You have to worry about whether he came as a trespasser and whether he stole the money, because he said he was in there.”
16. During the course of her summation, the judge explained to the jury the requisite elements of the offences of rape and burglary. She pointed out to them what the Crown had to prove the element so that the jury could feel sure of each count. The judge explained to the jury what the relevant sections of each Ordinance stated.
17. The judge made it clear to the jury that in respect of the offence of burglary, they would have to i) first find that the appellant was a trespasser and then find ii) that he stole the money from the complainant's purse. The judge also reminded the jury of the appellant's case was that he was in the apartment, but that he did not steal the money. In her summing up, the judge reminded the jury that the complainant said in her evidence that she asked the appellant whether he wanted money and the appellant responded “I don't want your money”. The trial judge indicated to the jury that it was a matter for them.
18. The burden is on the appellant to satisfy this Court that no reasonable jury who had applied their minds properly to the facts could have reached the conclusion reached by the jury and in those circumstances the two verdicts were inconsistent. The question which this Court is required to answer is whether the appellant discharged the burden which is on him? The Court is satisfied that the appellant did not discharge that burden and that the verdicts of the jury in finding the appellant guilty of rape but not guilty of burglary are not inconsistent having regard to the evidence.
19. The Court is not satisfied that, on the state of the evidence, the verdict of the jury on the court of rape should be set aside on the ground that is unreasonable and cannot be supported having regard to the evidence. The Court is satisfied that, having regard to the evidence, a reasonable jury who applied their minds properly to the facts could have arrived at the verdicts reached. In the opinion of the Court, the verdict of guilty of rape but the verdict of not guilty of burglary are not unreasonable and inconsistent but is in fact supported by the evidence. As stated previousl, counsel for the appellant concentrated on the issue of whether the appellant was not a trespasser as it was his case that he was invited into the house by SR. However, it was open to the jury to reject the appellant's contention and find that even though he was a trespasser, he nonetheless did not steal the money which was an essential element of the offence of burglary. It was therefore open to the jury to accept that the appellant was a trespasser but did not steal any money from her purse which is supported by the evidence of SF.
20. Based on the evidence, it is the opinion of the Court that, a reasonable jury could have reached the verdicts which the jury reached having properly applied their minds to the facts of the case.
21. In his second ground, the appellant alleged that the judge did not adequately put to the jury the case of the defendant. Counsel submitted that the judge failed to put to the jury the challenges which were put to the witnesses during cross examination by counsel. By this allegation this Court understands that counsel is referring to suggestions put by counsel for the appellant during the cross-examination of SF. Counsel relied on the case of Brower  Crim. L.R. 746 which she stated was instructive in this regard. She contended that “putting the defence fairly and adequately to the jury has rightly been described as the over-riding rule when summing up” Counsel suggested that is is hard to see how this can be done without referring to the evidence when the defence has sought to exploit the inconsistencies in the prosecutions witnesses' accounts.”
22. Counsel submitted that guidance has been given by the courts on the approach to be taken where the defendant elects not to give evidence. She relied on Curtin v R  Crim LR 831 in which she stated that it was held and that it will usually be appropriate to give an overview of counsel's speech. Counsel also relied on Pomfrett v R  2 All ER 481 and submitted that the learning from this case was that an overview of the defendant's case was to be woven into the chronology. She pointed out that none of these things was done. It must however be remembered that what is said in counsel's closing address is not evidence.
23. During the cross examination of SF, a number of suggestions were made by counsel, all of which were rejected.
Cross Examination by Mr. Grant
A. I never see him under there, cause I don't even know who he is.
Q. I'm a put it to you that you did see Steve under the gazebo on many occasions with your son and Denton and the other guys.
A. If he come through Kitch Yard and come under that gazebo, he comes when Stephanie Forbes is not around.
Q. Ma'am, I'm a put it to you that it is there that you begin to talk and got quite friendly, didn't you?
A. I have never talk with that young man.
Q. In fact, it got so friendly that he, sometimes along with Phillip Handfield would pick you up from work?
A. Never. Phillip Handfield has never pick up Stephanie Forbes from work, because I've always had ride to come from work, always.
Q. I'm a put it to you, ma'am, that you called Steve to take you to work and you often call him to come and get you?
A. I don't even have a number for him, don't even know.
Q. If I can put it this way: You and Mr. Remy had a sexual relationship, didn't you?
A. I have never ever been--
A: Been with that man.
A: I have never slept with that man.
Q. And I'm a put it to you, even after your - let me ask you, are you denying you are sleeping with Steve because at the time you had a boyfriend who was his friend?
A. I am not denying that, I did not slept with that man. I did not had a relationship with that man.
Q. Are you still maintaining the position -
BY MR. GRANT
Q. And you are still saying that you have never seen him with your son Johno?
A. If he comes around with my son, I have never seen him and Johno hang together.
Q. I'm a put it to you, Miss Forbes, said your heterosexual relationship on the down low because you couldn't let your son know or your boyfriend knew?
HER LADYSHIP: On the who low?
THE WITNESS: On the what?
MR. GRANT: A secret relationship, My Lady, I am trying to be -¬
HER LADYSHIP: Well, I know the term, but I just didn't hear.
Q. You had a secret relationship with Mr. Steve that you didn't want your son nor Denton to find out about, didn't you?
A. I had a secret -- I've never had a secret relationship with him, because I've never had a relationship with that young man.
Q. And I'm a put it to you, so was your relationship that you were comfortable asking him for stuff and he providing for you.
A. I'm a hard working woman, whatever I got I provide for myself. I have eight kids and I have been providing for my eight kids all alone. I'm a single mother and I took care of my kids. I don't have to ask no one for help. I took care of my kids. What I don't have, I have a boss that I go to and get help from.
Q. Let me put it to you, ma'am -¬
HER LADYSHIP: Just a minute, let me get this please, sir.
Q. Mrs. Forbes, even after you moved to Blue Hills, Mr. Remy visited you a couple of times, didn't he?
A. He has never visit me, because I don't know him. When I move to Blue Hills, at first, I was not in the apartment that I got, I was living with my cousin Royet Dickinson, at first.
Q. On the 6th of March--
HER LADYSHIP: Keep your voice up, please. What date did you give, please sir?
MR. GRANT: I'm going to rephrase, My Lady, and ask another question.
BY MR. GRANT
Q. Let me ask you about your house. The apartment now that you live, there are dogs in the yard, correct, dogs, dogs?
Q. On Wednesday after you came home from work, the 1st of March, you were expecting to see Mr. Remy the night, weren't you?
Q. As was normal, he came and he knocked on the window to get your attention to let you know he was there, didn't he?
A. Knocked on my window?
Q. Your bedroom window.
A. My bedroom window?
Q. Given the bars you went round and open up the door?
Q. Let me put it to you, ma'am, on the 1st, you opened the door and let Mr. Remy in?
A. I have never opened my door.
Q. And he followed you to your bedroom?
A. I have never opened my door to let that young man in.
Q. And you two begin to make out, did you not?
A. I have never let that young man in.
Q. You begin to kiss, fool around and stuff like that?
A. I have never make out with that young man.
Q. At one point you were in the bed and he told you that he was not comfortable that your son was there, correct?
A. Can you come back with that, sir?
Q. He told you he was not comfortable there as your son was in the bed?
A. That young man has never come into my apartment and I let him in and told me that. That young man came into my apartment, attack me and --
Q. He got up and left and you followed him outside, didn't you?
A. Nothing like that had happened
THE WITNESS: Nothing like that had happened.
Q. You follow him outside, which you all did have sex, didn't you?
A. Sir, nothing like that happened.
Q. After having sex you all had an argument, didn't you?
A. I have never argued with that young man.
Q. He was supposed to bring something to you and he didn't?
A. I knows nothing of that.
Q. And you threaten him, didn't you?
HER LADYSHIP: Just a minute. Yes. The answer? The suggestion is that you threatened him, didn't you?
THE WITNESS: I have never threatened that young man, that young man threatened me.
Q. You told him that you was going to see that he spend some serious jail time, didn't you?
A. That young man threatened me.
Q. Miss Forbes, you knew if you had called rape the police would have taken him
HER LADYSHIP: Come again, I didn't hear you. I am not hearing you
Q. Miss Forbes, you knew if you had called rape the police would have taken you to the hospital to be examined and DNA collected, didn't you?
A. Say I knew if?
Q. You knew if you call rape you would be taken to the hospital to be examined, correct?
A. I was raped.
Q. Listen to the question, ma'am. I said if you knew, prior to calling the police that if you had-
Q. I'm a put it to you, ma'am, that you called the police and said that you were raped knowing that they would have find evidence of Mr. Remy being with you?
MRS. BROOKS-CAMPBELL: Objection, My Lady.
Q. I put it to you, Miss Forbes, that you were not raped on the 1st of March 2017.
A. Yes, I was.
Q. And I finally put it to you that you saying that you were raped was in an effort to make good on your threat to Mr. Steve Remy Gardiner.
A. Can you repeat?
Q. The reason why you called said that you were raped, was an effort to make good on your threat to Mr. Gardiner, Mr. Remy.
Q. You just said that you were raped to get Mr. Gardiner into trouble?
A. Sir, that young man attacked me.
Q. Let's look at your story Mrs. Forbes. You said when you came home from work that night you just took off your blouse and you slept in your work pants, correct?
A. I took off my blouse and I laid down with my work pants on.
Q. The work pants that you had on, did it fit similarly to the one that you have on now? Is it fitted?
A. Something like this, but it was a little -
24. In her summation, the judge told the jury:
What is the Defence saying to this? The Defence is saying it did not go like that. The Defendant did not steal any money. The Defence is saying he was invited to the apartment, he knocked on the window and Stephanie Forbes let him into the apartment by opening the front door, thereafter they had consensual sex, the Defence is saying. And it was he, Defendant, who told her, Stephanie, he did not feel comfortable in the bed with her little son there. And she it was who led him outside and had consensual sex with him over the large rock in the yard. Then they had a disagreement. The Defence is saying, because he did not bring her anything and it was she who threatened him and made a report to the police. Matter for you. I am just giving you the two sides early while everybody is still listening to me, yes. Now, Right to Silence: I must tell you about Right to Silence. Now, the Defendant had an interview where he did not answer any questions regarding the allegations of Rape and Burglary. He exercised his Right to Silence. The evidence was, through Mr. Gardiner, the investigating...
“The Prosecution is asking you to reject the defence as a pile of foolishness.
Now, the Defence: The defence is consent on the Rape charge. Yes, for Count One. And the defence is denial on Count Two, the Burglary. Consent is saying, yes, I had sex with her, but it was consensual. We knew each over. We had a thing going on, that's what the defence is saying.
The defence is saying there is no forensic evidence from the window or the door of the apartment.
On the Rape now, the Defence is saying the sexual intercourse was consensual. The defence is saying Miss Forbes had a thing going on with Defendant, yes, and that night, the 1st of March 2017, the Defendant came and rapped on her bedroom window, and she let him into the apartment through the door. They had consensual sex, and then they had a disagreement because he did not bring her anything.
The Defence is saying that is why Miss Forbes made a report to the police about the rape. The defence is saying that the DNA by itself does not prove anything, because the Defendant is admitting the sexual intercourse except he's saying it was with consent.
The Defence is saying Miss Forbes is not telling the truth. Defence is saying you must have some doubt.
The Defence is asking you to acquit Defendant of the charge of the rape, because Miss Stephanie Forbes consented to sexual intercourse with him. And the Defence is asking you to acquit...”
25. This submission is misconceived. It is trite law that suggesting put by counsel in cross-examination but not accepted by the witness is not evidence. The appellant did not, as is his right, give evidence. His counsel made a number of suggestions to the witness SF during the course of cross-examination. Most of these suggestions were not accepted by the witness nevertheless the judge left them to the jury as though there was evidence to support the suggestion.
26. At page 566 of the transcript the judge gave a direction on inconsistencies without highlighting the inconsistencies which the defendant had explored and juxtaposing them with the prosecution's case. In Gregory August and Alwin Gabb v R  CCJ 7 (AJ) the Caribbean Court of Justice observed at para 60:
“ Although a trial judge ought to explain to the jury the nature and significance of conflicts in evidence and direct them on how to treat with those conflicts, there is no requirement that the trial judge should identify every inconsistency that arises. The Court of Appeal of Jamaica in the case of R v Fray Diedrick SCCA No 107/1989 (22 March 1991) cited with approval in the case of Cargill v R  JMCA Crim 6, JM 2016 CA 17, explained that there was no requirement that the judge should “comb the evidence to identify all the conflicts and discrepancies which occurred in the trial”. What was expected was that the trial judge would “give some examples of the conflicts of evidence which have occurred at the trial, whether they be internal conflicts in the witness' evidence or as between different witnesses.” Of course, the trial judge should also point out any major conflicts in the evidence of the prosecution or the defence.”
27. An examination of the cross examination of SF shows that most of the suggestions put by counsel for the appellant were in fact rejected by SF. A suggestion put to a witness in cross-examination which is rejected, is not evidence. However, the judge in her surmount to the jury treated these suggestions as though they were evidence in the case. The judge told the jury that on the count alleging rape, the defence was saying that the sexual intercourse was consensual. This suggestion was rejected by SR and there was therefore no evidence that there was sexual intercourse.
28. The judge also told the jury that the appellant was saying that he and SF had a thing on and that on 1 March 2017, the appellant came and knocked on the bedroom window and SF let him into the house where they had consensual sex. The judge told the jury that the appellant was saying that following the sexual intercourse with SF, there was a disagreement between the two of them because the appellant did not bring anything for her and this is why SF made a report to the Police. These suggestions were rejected by the witness SF and therefore there was no evidence to support the suggestion.
29. The appellant exercised his constitutional right and declined to give evidence. In the circumstances there is no evidence which would justify a judge leaving the suggestion to the jury. The Court finds it necessary to repeat that what is said by either counsel in their address to the jury is not evidence unless it was stated by a witness from the witness stand.
30. Counsel relied on a number of cases from England but these were decided under the provisions of section 34 of the Criminal Justice Act 1994, where it is stated “a positive suggestion put to a witness by or on behalf of a defendant in his defence may be a fact for the purpose of section 34, and require the judge to deal with it in his summation to the jury. The provisions of this section has no equivalent in the Turks and Caicos Islands, and, to that extent, the submission is misconceived.
31. Counsel contended that the judge misdirected herself as to the principles in holding that the defence was prohibited from calling evidence to challenge a previous inconsistent statement of the virtual complainant. Counsel submitted that the judge erred by not allowing the appellant's attorney-at-law to challenge SF on material inconsistencies between her evidence at trial and the oral statement which she gave on the night of the incident to Police Officer Desirene Forbes. The points of inconsistency related to whether intercourse has taken place in the bed and whether the complainant had left the bedroom to go outside with the defendant on her own volition. The judge ruled that the statement was firstly hearsay and could not be put to the virtual complainant as a previous inconsistent statement and secondly that the issue of whether the virtual complaint walked outside of her own volition was not an issue of fundamental credibility and as such it was a collateral issue and evidence could not be called in rebuttal of it.
32. Counsel submitted that the ruling was based on improper principles. Firstly, the document was not hearsay because counsel did not seek to adduce it for the truth of its contents but for the fact that it was said. The fact that she had made fundamentally different statements on the night of the incident directly affected the witness' credibility and would have affected her standing with the jury. Secondly, counsel stated that the issue of credit was not a collateral issue as it related to as sexual offence and this was an established principle. Counsel relied on R v Funderbunk  1 WLR 587, where the Court of Appeal held:
“that the test to be applied in determining whether the witness should have been crossed-examined as to credit was whether her answers to those questions might have reduced her standing as a witness so that the jury would have wished to re-appraise her evidence in chief; that, in the circumstances, the defence should have been permitted to cross-examine as to credit and those questions being sufficiently related to the subject matter of the indictment for justice to require that the matter be investigated, the evidence of the defence witness should have been admitted if the girl's answers to the questions had been a denial...”
33. Counsel contended that the failure of the judge to allow this line of questioning prevented the defence from exploring fundamental inconsistences which undermined the defence's case. She further contended that the contrasting verdicts show that the jury was open to accepting the defence's version of events. If the appellant was able to fully explore the challenge such as with the entry to the building which they clearly determined was not a trespasser. Counsel argued that the previous inconsistent statement would have undermined SF's credibility and made the jury more willing to accept the version of events of those issues which were challenged by the defence and her credibility was essential to the issue of consent.
34. The Court ruled that the statement was not relevant to the matter at hand. The judge stated that the defence was one of consent so it was immaterial where the parties had sexual intercourse. Counsel for the Crown submitted that the judge rightly ruled that “whether or not she told somebody the sex took place in the bed and on the rock, or if you believe that Detective Forbes said was told to her, is just on the rock, it's still collateral to this issue.”
35. The issue for the jury in this case in so far as the count of rape was concerned was limited to whether SF consented. The case of the defence as contained in suggestion to the SF was, that while sexual intercourse did take place, it was with the consent of SF and it took place outside on a rock. Whether or not sexual intercourse occurred in the bed, or as is the appellant's case that it took place on the rock outside the house, the prosecution's case is that it was without consent. Even if the jury rejected any evidence that intercourse occurred in the bed, appellant agreed with SF that intercourse took place on a rock outside the house. He however alleged that SF consented. The issue for the jury was whether or not intercourse occurred on the night whether in the house or on the rock and whether SF consented to the appellant having intercourse with her.
36. Even if the Court is wrong on this issue, the Court would apply the provisios of section 7 of the Court of Appeal Ordinance which allows the Court “notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant dismiss the appeal if the Court considers that no substantial miscarriage of justice has actually occurred”. Having regard to the nature of the evidence the Court does not consider any miscarriage of justice occurred.
37. Defence counsel at the trial sought to challenge SF on matters which the judge considers were not essential to the case for defence. The judge refused to allow the counsel to pursue a line of questioning which suggested that the virtual complainant exchanged of sex for favours. It was excluded by the judge on the basis that the counsel had not specifically put any such suggestion that question to the virtual complainant during his cross-examination of her. The virtual complainant had however specially been asked if she exchanged sex for favours and had done so with the defendant and the foundation of the defence was that on this occasion she had cried foul because the defendant did not provide what he had promised. Whether she had offered to participate in such a transactional sexual encounter before with others is relevant to her propensity to so do again and supports the defendant's version of events as such the learned trial judge should have allowed the defence to explore that line of questioning.
38. The judge, in the opinion of the Court, correctly refused the request of counsel for defendant to the question, the complainant's landlord in relation to whether or not the complainant would offer sex for rent. Such line of questioning was irrelevant to the way in which the case for the defence was conducted. The case for the appellant as put by way of suggestion was that the appellant and the complainant were in a secret relationship and as such she and the appellant had consensual sex on the night.
39. The appellant was sentenced to a term of 8 years imprisonment. In his appeal against sentence it is alleged that the judge erred in treating the appellant's forced entry into the residence of SF as an aggravating factor in passing sentence. He relied on the finding of the not guilty verdict on the burglary count. Counsel for the appellant position on the appeal is that the jury found the appellant not guilty because they were not satisfied that he was a trespasser. As a result the appellant has received a sentence which is not reflective of the criminality which was involved in the offence and is therefore manifestly excessive. For the reasons already stated, the Court reflects the contention that this was the basis of the not guilty verdict on the bulgary count.
40. The judge in sentencing the Defendant took into consideration:
(i) the UK sentencing guidelines in relation to Rape;
(ii) the authority of R v Milberry and others
(iii) available local authority and
(iv) the age of the defendant, 23 years;
The court also took into consideration the aggravating factors:
(i) that the rape was done in two stages;
(ii) that the first stage started in the presence of the victim's nine year old son in her bed;
(iii) that the defendant entered the virtual complainant's home uninvited; and
(iv) the threat of violence that was used to subjugate the victim
Conversely, the mitigating factors which were considered, were:
(i) the age of the defendant at the time of the offence; and
(ii) that he had no previous conviction of rape or any offence of a sexual nature.
41. Counsel for the Crown submitted that the judge applied the correct principles in sentencing the Appellant in establishing the starting point and considering the mitigating and aggravating factors.
42. Counsel also submitted that the sentence should not be disturbed as it was not manifestly excessive.
The Criminal Appeal Reports 1961
“In most cases what the trial judge endeavours to do is by reference to the evidence to direct the jury's attention to what may be called the salient features for and against the accused man. No case has laid down, so far as we are aware, that it is essential for the validity of a summing-up that there should be a reference to the evidence, but equally there is no case that, so to speak, absolves a court from what is normally its function of assisting the jury by dealing with the evidence.”
“Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively.” “This court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice.”
R v Brower (Lionel) 1995 WL 1084730 (1995)
“in the case of Marr (1990) 90 Cr. App. R 154, Lord Lane CJ, in the slightly different context of considering the fairness of the trial as a whole, made these observations:
“No one could doubt that if the allegations made by the prosecution were true, this was a singularly unattractive crime, earning the offender no sort of sympathy. Likewise the nature of the defence was, to say the least, most unimpressive. It is however an inherent principle of our system at trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge. Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place that might exacerbate the defendant's difficulties.”
43. The appellant complained that the sentence of 8 years imprisonment was excessive. It was submitted that the judge erred in treating the appellant's forced entry as a consideration in passing sentence. Counsel is basing this submission on the fact that the jury found the appellant not guilty of burglary. It was counsel's contention that the jury's verdict of not guilty was because the jury accepted that he was a trespasser. However, as set out above the reason for the not guilty verdict was probably based on insufficient evidence of stealing the money.
44. The judge in imposing sentence took into consideration the mitigating circumstance. The judge had regard to the age of the appellant which was stated as 23. The judge did not take into consideration the prior convictions of the appellant.
45. The judge took into consideration a number of aggravating factors including that the appellant entered the house without being invited. The offence took place while SF was asleep in her bed with her young son. The judge correctly considered that there were two incidents of rape - one in the bedroom and the other on a rock after he had taken SF outside.
46. In R v Millberry  EWCA Crim 2891, Lord Woolf adopted what former Chief Justice Lord Lane had said in R v Roberts  1 All ER 609. At para 3, Lord Woolf said:
“General guidelines as to sentencing for rape were given by this court in the case of the R v Roberts and Roberts  4 Cr App R (S) 8. Lord Lane, Chief Justice presided. In giving the judgment of the court he stated:
"Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence. . . . A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly to emphasis public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last but by no means least, to protect women. The length of the sentence will depend on all the circumstances. That is a trite observation, but those in cases of rape vary widely from case to case."
47. In R v Billam  1 ALL ER 985, Lord Lane Chief Justice reaffirmed what he said in Roberts case. In Billam, Lord Lane stated where the rape was committed by an adult who has broken into or otherwise gained access to a place where the victim is living, the starting point should be 8 years.
48. At para 18 of Millberry, Lord Woolf said:
“... it is convenient to turn to what should be the starting points for sentences after a contested trial. In Billam 5 years imprisonment was the figure in a contested case where there was no aggravating feature, 8 years imprisonment the figure where there were certain aggravating features...”
49. In this case the aggravating circumstance were all taken into account by the judge. In our view, the judge correctly used the starting point of 8 years. The other aggravating factors included the time he entered the house and committed the offence, that the offence was committed while her young son was lying in the same bed and that he took her out of the house and raped her again on a rock.
50. In the circumstances, the Court considers the judge was correct and consequently the appeal against sentence was also dismissed. The Court affirmed the conviction and the sentence.