IN THE COURT OF APPEAL
THE TURKS AND CAICOS ISLANDS CR-AP 2/2019
Sir Elliott Mottley President
The Hon. Mr N. Adderley Justice of Appeal
The Hon. Mr. R. Hamel-Smith Justice of Appeal
Ms. Sheena Mair for the Appellant
Ms. Mickia Mills for the Respondent
Heard: 18th, 19th September, 2019
Delivered: 30th January, 2020
Delivered by R. Hamel-Smith. JA
1 The Court, having heard counsel on both sides on September 18 and 19, 2019, dismissed the appeal, quashed the conviction and sentence and ordered a retrial of the matter. We promised to give our reasons at a later date and we do so now.
2 The appellant was charged with one count of Rape contrary to section 29 of the Offences against the Person Ordinance Cap 3.08. Following a trial on March 7, 2019, the appellant was convicted and sentenced to eight years imprisonment. On appeal, he filed three grounds of appeal but at the hearing pursued ground 3 only, which alleged that trial counsel was incompetent/ineffective in the conduct of the defence.
3 The offence was committed on December 2, 2017 in the early hours of Saturday morning. The appellant had instructed his trial counsel that he had engaged in consensual sex with the victim on the nights of Thursday and Friday preceding the alleged rape on Saturday. However, in his instructions he made it clear that he did not have sex with her on Saturday morning as alleged in the indictment. From those clear instructions, the issue of identification had to be a main issue for resolution at the trial.
4 The prosecution had obtained a DNA report from the vaginal swabs of the victim, which showed the presence of the appellant's DNA and intended to introduce it into evidence for the purposes of identification. Arrangements were therefore made to have the DNA expert testify at the trial. As it turned out, however, there had been a pre-trial hearing in which, as a result of a discussion between the attorney representing the Director of Public Prosecutions and trial counsel, it was agreed that the DNA report would not be required.
5 In an affidavit subsequently filed by trial counsel for the purposes of this appeal, in response to one filed by the appellant, he made reference to that pre-trial discussion and stated as follows:
‘There was an exchange with the judge in regards to identity and that happened as a result of a misunderstanding in the pre-trial review. In the review, it was put forward to the Prosecution that Mr. Kenson had admitted to having sex with the Complaint on Friday that being hours before the allege (sic) rape. So there was no need for the DNA expert in regards to his DNA being found from the vaginal swabs of the Complainant. It was never admitted or intentionally put forward that there was a general defence of consent, it was always that it was not him. I cannot recall if it was the same counsel that handled the case at the pretrial review”.
6 At the beginning of the trial however, the prosecutor was not the attorney who attended the pre-trial review and therefore did not have first-hand information on what had been discussed. She therefore informed the trial judge that she required some clarity on the approach proposed by trial counsel because she understood that that there had been some agreement at a pre-trial review to the effect that the DNA report would not be required. The prosecutor stated that the reason for this was that the defence had indicated that ‘consent' was going to be the sole issue at the trial, making the DNA report unnecessary. She therefore enquired of the judge whether she should include in her opening remarks (quote) “that the actual fact was not in issue, it's a matter of consent since we are not putting in the DNA”. The judge responded by saying that that in those circumstances, (quote): “That's all it takes. You are just saying that these two people have indicated that they had sexual intercourse on whenever, wherever it was, Miss so an so would say it wasn't by consent…….The issue is whether they agreed to have sex or consensual sex, because the defendant denies it “. The prosecutor reiterated that the reason for her enquiry was that in light of the concession, the victim would lead no evidence on the issue of identification. The judge took the precaution to enquire of trial counsel by asking him if there was (quote) “no issue of identification, there's no issue at all, as I understand it?” Trial counsel unequivocally confirmed the judge's understanding. In the result, the DNA expert was excused from further attendance and the report was never tendered.
7 The prosecutor, relying on this assurance by trial counsel, informed the jury in her opening remarks that the case would turn on the sole question of consent. In simple terms, the jury would have understood her remarks to mean that there was an admission of the part of the accused that he had engaged in sexual intercourse with the victim as alleged in the charge but that it was with her consent. It is useful to set out precisely what the prosecutor told the jury in the presence of both trial counsel and the appellant. She said:
“And I am going to point out to you......that it is agreed between Defence and the Prosecution that identification is not an issue in this case. That it was Mr Jeff Kenson, also known as Blanc. And the issue left for you in this matter is whether or not she was raped or she willingly had sex with Blanc, Jeff Kenson”.
8 Notwithstanding what may have been said or agreed at the pretrial review, these concluding remarks by the prosecutor to the jury, without any objection by trial counsel, could only re-enforce the conclusion that the concession made by the defence was that the appellant had engaged in a sexual encounter with the victim as alleged and the main issue for decision was whether that encounter was consensual or not. Notwithstanding the clear terms of the concession, the judge, obviously out of an abundance of caution, called on trial counsel to confirm that that was precisely what his client had conceded. Trial counsel concurred. It would be fair to conclude that the jury understood that its main function, from the evidence to be led, was whether the sexual encounter between the appellant and the victim on that Saturday night was with or without consent.
9 With that assurance, the trial proceeded. In keeping with the agreement, there was no objection to the victim referring to the appellant as ‘Blanc' as the person who had come to see her on the Thursday afternoon at her home and again on Friday evening. And, she then stated that the next time she encountered Blanc was at around 2 am on Saturday morning when the incident occurred. In cross-examination, trial counsel put several questions to the victim as to her relationship with him and to the sexual encounters she allegedly had with him on the Thursday and Friday preceding the alleged rape. She denied those encounters and was adamant that the appellant had raped her in the early hours of Saturday morning.
10 When the Judge sensed that the cross-examination appeared to be coming to a close, he, in the absence of the jury, enquired of trial counsel as to when he was going to put his case to the victim, namely, that the alleged sexual encounter was by consent. As far as the judge was concerned, most of what had been put to the victim tended to point to the issue of credibility. It was then trial counsel told the judge that he had already put his case to her, which, in his view, was that they had consensual sex on the Thursday and Friday. The prosecutor interjected that her understanding was that the sole issue had always been that of consent, hence the reason for having dispensed with the DNA report. The judge reminded trial counsel that the charge was in respect of the Saturday night only and enquired of him whether the allegation was that there had been consensual sex on that morning. Trial counsel's response was to agree that there had been consensual sex.
11 Trial counsel proceeded to put several more questions to the victim, including the suggestion that Blanc had never raped her on the Saturday morning as alleged. She insisted that he did. The judge considered that, in light of the concession, those questions may have been related to the issue of consent and not to the question of identity and he accordingly, again in the absence of the jury, resurrected the issue of consent with trial counsel. He queried whether trial counsel's further questioning was in relation to the issue of identification and made it clear that he was still at odds with trial counsel on his concession. Trial counsel, oddly, offered the explanation that he wanted to show that the victim's story of what happened on Saturday night did not happen at all. That explanation, as far as the judge was concerned, related more to the issue of credibility than anything else and inconsistent with the concession he had made.
12 The judge, obviously still not persuaded, explained that he needed to find out whether trial counsel was pinning his case on identification because, if that were the case, he would have to direct the jury on the issue. Again, trial counsel was unequivocal in his response (quote) “No, my lord, we just raised it because of how incredible we say the story is”. The discourse continued to the extent that the judge enquired of trial counsel whether the man in the mask that night was the appellant, to which trial counsel agreed, leading the judge to conclude that it appeared that the issue was still that of consent. There was a further intervention by the judge near the close of the cross-examination when the judge asked trial counsel to state whether the defence was one of identification or consent. In what seemed to be a volte farce, trial counsel finally conceded that identification and not consent was the issue.
13 The judge was concerned to the extent that he immediately raised the question of whether to discharge the jury and begin the trial afresh. He also considered whether, what he termed the least of two bad options, to allow the prosecution to recall the victim to revisit the evidence and deal with the question relating to identification. In the end, he adopted the unusual approach of permitting trial counsel to put his case to the victim and then allowing the prosecution to lead further evidence on the issue of identification. By that time, however, the DNA expert had left. The trial proceeded without the DNA report and, in the end the jury convicted the appellant of the charge.
14 On appeal, the appellant filed an affidavit in which he disclosed his instructions to trial counsel that he had consensual sex with the victim on the Thursday and Friday night before the alleged rape on the Saturday morning. He stated that his defence was a denial of having had sex with the victim as alleged. While the appellant was present when trial counsel made the concession, the appellant said that he had heard a long discussion between the judge and trial counsel but he was not sure what it was about.
15 In an affidavit filed in response to the appellant's, trial counsel confirmed that his instructions were indeed that the appellant had denied having sex with the victim on Saturday morning as alleged but that he did have consensual sex with her on the Thursday and Friday night before the alleged rape. He further claimed that the defence was always that the appellant did not rape the victim as alleged and that all the questions posed to the victim in cross-examination were in respect of identity. He said that ‘consent' was not an issue in the charge of rape against the appellant. He criticized the appellant's present counsel, suggesting that any change of defence was as a result of a lack of appreciation on her part for the appellant's case and her failure to properly read the transcripts of the trial.
16 Trial counsel further stated that at the trial there was an exchange with the judge on the issue of identity and that had come about because of a misunderstanding at the pre-trial review. He swore that at the review the prosecution was told that the appellant had admitted to having sex with the victim on the Friday night, which was hours before the alleged rape. That was the reason for dispensing with the services of the DNA expert. He said it was never admitted or intentionally put forward that there was a general defence of consent as it was always that it was not the appellant.
17 Trial counsel in his affidavit appeared to rely on the concession he claimed to have made at the pre-trial review only. He disregarded the fact that the jury was not present at that review and seemed not consider anything that he said in relation to that concession at the trial itself. It is precisely what trial counsel told the prosecutor and the judge at the beginning of the trial and what the jury had been told by the prosecutor concerning the concession that was relevant to this appeal.
18 It is significant that trial counsel in his affidavit confirmed that in his instructions the appellant had denied the rape allegation made against him. It would follow therefore, that at the beginning of the trial, counsel was aware that the main issue was that of identification and not consent, making it difficult for one to understand the purpose of the concession he actually admitted to in court. It certainly cannot be said, and trial counsel does not say this, that he misunderstood his instructions. Trial counsel did say that he consulted the appellant from time to time in the course of the trial; whether he consulted him on the concession or on the concerns raised by the judge was not addressed. Even if he did consult the appellant on the concession, it is unlikely the appellant would have questioned counsel's conduct of the trial. The appellant, in his affidavit, did say that there were discussions between the judge and trial counsel but that he did not understand what they were discussing. Further, from what he said in his affidavit about his instructions to counsel would lead anyone to conclude that it was more likely than not that he did not fully understand the reason for or purpose of the concession.
19 Counsel for the appellant had submitted that trial's counsel's representation was so incompetent as to render the trial unfair with the result that his conviction was unsafe. Incompetence in itself is not a ground of appeal or a reason why a conviction should be set aside. In order to establish a lack of safety in a conviction from a plea of incompetence, it would be necessary to go beyond the incompetence and demonstrate that it led to identifiable errors or irregularities in the trial, which themselves would render the process unfair or unsafe (see Mark D Day v The Crown EWCA Crim. 1060 at parag.15). This Court is hesitant to describe trial's counsel's conduct as incompetent; in its view, it certainly appeared to be far worse than incompetence but whatever the description, it certainly had an extremely negative impact on the trial itself.
20 What this Court had to decide was whether, as a result of the misleading concession made by trial counsel, there was a miscarriage of justice in that the appellant and/or the Crown may not have received a fair trial. Trial counsel's affidavit threw no light on the issue for the simple reason that he admitted to the instructions given to him that demonstrated that he must have known that the issue for the jury was clearly that of identification and not consent. And he certainly read the transcript because he chided the appellant's counsel for not understanding the case that was presented and contained in the transcript.
21 The several interruptions occurred in the absence of the jury, as one would have expected. Initially, the judge considered aborting the trial and starting afresh with another jury. That approach was short lived as the judge thought it more convenient to carry on with the trial and allow the prosecution to present evidence on identification at the close of the initial cross-examination. One can well understand the predicament in which the judge found himself. His difficulty was to find a way to explain to the jury what really had happened, given that at a very earlier stage, from the opening remarks of the prosecutor, the jury would have understood the effect of the concession made by the appellant and the sole issue for their decision. Unfortunately, the judge never disclosed to the jury what had occurred before he proceeded with the trial. The jury was summoned back into court and trial counsel continued with his cross-examination. In the summation to the jury, the judge made no reference to what had happened to the concession and the change in issue. In his summation, he dealt with the issue of identification as if it were the main issue and refrained from mentioning anything to do with the concession that had been made.
22 The first issue was to determine the effect of such a concession on the jury itself. It was likely that, in the absence of any explanation from the judge that the concession had been abandoned during the trial, the jury may have been left in a state of uncertainty or confusion as to the real issue for their determination, notwithstanding the judge's directions on the issue of identification. Having been told at the beginning of the trial that the sole issue was that of consent and that identification was not in issue, the appellant having admitted to having had sex with the victim, albeit consensual, there was the strong likelihood that the jury could have interpreted or considered the change of issue from consent to identification as a volte farce on the part of the appellant when the victim denied having sex with him at all, and particularly consensual sex with him on the preceding Thursday and Friday before the actual rape occurred.
23 The other issue was the effect of the concession on the prosecution's case. It was obvious that the concession led to the abandonment of the DNA evidence, which would have bolstered the prosecution's case on identification. In the result, it would have weakened its case considerably. Whether trial counsel introduced the concession intentionally or not was irrelevant; the disturbing fact is that the concession was made in open Court and the DPP had acted on it to the detriment of the prosecution's case. Trial counsel's conduct, notwithstanding the judge's several enquiries of him to confirm the terms of the concession, fell below the threshold expected of him. The transcript was clear that trial counsel sat in Court and agreed with the judge on the terms of the concession, knowing fully well from the appellant's instructions (to which he admitted) that consent was not the issue. The result of that conduct allowed the appellant to gain an unfair advantage over the prosecution by having the DNA report excluded from the evidence at the trial. His remarks in his affidavit blaming the present attorney's lack of understanding the case were misguided and ill-advised. The judge himself was compelled repeatedly to call on trial counsel to clarify his client's case and was met with stubborn resistance.
24 In light of what was said in paragraph 22 (above), in the absence of any direction on the concession, we were concerned that the jury, because of the nature of the concession and what they were told by the prosecutor in her opening remarks, may have given little attention (if any) to the evidence on identification, possibly preferring to treat with that evidence instead as a volte farce on the part of the appellant. This would have been to the appellant's disadvantage. The only rational conclusion one could draw was that the concession led to a miscarriage of justice, resulting in unfairness to the appellant.
25 In light of the effect of the concession on the minds of the jury and the omission on the part of the judge to give any clear direction to the jury on how to treat with the concession in light of the change in the appellant's case, we could not be certain that the damage was completely eliminated. We were satisfied that counsel's representation and conduct at the trial resulted in a miscarriage of justice which deprived both sides of a fair trial.
26 Before closing, we think counsel appearing for accused persons need to be reminded that they are always under a duty to be forthright in any undertaking they may give the Court and when they do, there must be no ambiguity in that undertaking. Unfortunately, in this instance, trial counsel fell far short of the mark. While one can empathise with an accused person making such a concession and claiming not to understand its effect, counsel has the advantage of knowing the law and the effect of any concession, particularly of a simple one as consent in a rape case. It was disingenuous of trial counsel therefore, to assert that identification was always the issue and everything else was as a result of some unexplained misunderstanding at a pretrial review.
27 For these reasons the appeal was allowed, the conviction and sentence quashed and a retrial at the earliest opportunity was ordered. In the final analysis, it may have been far more prudent for the judge to have followed his initial intuition and discharged the jury when it became clear to him that the concession had been breached. He, however, did not have the benefit of hindsight as we have had.
Delivered this 30th day of January, 2020
Sir Elliott Mottley, P
Hon. N Adderley, JA
Hon. R Hamel-Smith, JA