Daley et Al v R

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Lewis, C.J.
• Judgment Date: 21 June 1971
• Neutral Citation: MS 1971 CA 4
• Docket Number: Criminal Appeals Nos. 2, 3, 4 and 5 of 1971
• Date: 21 June 1971

Daley et al

and

R

Lewis, C.J Lewis, J.A. Davis, J.A (Acting)

Criminal Appeals Nos. 2, 3, 4 and 5 of 1971

Court of Appeal

Criminal Law - Appeal against conviction and sentence

Held: The court accepted the submission that the trial judge treated the evidence of the prosecutrix as though it were uncontroverted and failed to point out to the jury the serious discrepancy between her account of the incident and that of the other witnesses for the Crown with reference to the number of persons who had intercourse with her. The court accepted this submission and allowed the appeals of three appellants quashing their convictions. The court however found that the appellants Richards and Matthews were guilty of rape, that the sentence of 5 years imposed on Matthews was not excessive and that the sentence of 5 years imposed on Richards would be reduced to 4 years.

Facts: Five appeals were heard together by consent. The five appellants were charged and convicted of raping the prosecutrix at the invitation of the appellant Matthew. A large number of grounds of appeal relating to the facts as found by the trial judge and directions to the jury were submitted.

Lewis, C.J.

1 These five appeals were heard together by consent. At the close of the hearing the court announced its decision on each appeal and stated that it would reduce its reasons to writing and deliver them at a later date. This we now do.

2 The appellants were charged in one indictment, but each on a separate count, for the rape of a young woman named Amelia Allen at Plymouth on 26 ^th December, 1970. They were convicted on the 12 ^th March, 1971, and each sentenced to five years imprisonment with hard labour,

3 The appellants are all young, men in their twenties. Matthew and Carr are Antiguans who were spending the Christmas holidays in Montserrat. Matthew was a friend of the prosecutrix Allen.

4 The case against the appellants, as stated by the prosecutrix, was that after a calypso show on 25 ^th December, 1970, attended by herself and the appellants other than Robin, she went, at about midnight., with the appellant Matthew to a house occupied by the appellant Robin and the witness William Riley. There they met Robin. Matthew had a meal, after which there was an argument as to whether they should go immediately to a discotheque. Matthew asked her to have sexual intercourse with him and she refused. He boxed her several times, pulled her into a bedroom, and eventually forcibly overcame her resistance, undressed her and himself, forced her on to a bed and had intercourse with her. She said that during the struggle the appellant Robin called out to Matthew and advised him to get her out of the house. A button burst off her blouse and she lost an earring. She said that when Matthew was through the appellant Robin and then Daley, at Matthew' s invitation and in his presence, came into the bedroom naked and each forcibly had intercourse with her. Matthew then left saying he was going to the discotheque to call the rest of the fellows. She tried to escape from the house naked but Daley and Robin prevented her. They forced her into the bathroom, where Daley bathed her against her will, soaping and toweling her dry. They then led her, naked, into the living room where she found two girls, Molly White and Belle Lindo. They laughed at her and she was very much ashamed.

5 At about this time Matthew returned with the appellants Richards and Carr and three other men. Daley took her into the bedroom and put her on the bed. Richards and Carr and another man whose name she did not know had intercourse with her in turn. Matthew was present. During this time Riley entered the bedroom, which was the one he occupied, and switched on the light. Asked by Matthew whether he wanted his too, Riley removed his clothes and got on her in his briefs, but before he did anything to her she started to cry and told him what had happened. Riley then got up, protested to the others about what was happenings pulled her off the bed and got into a fight with Richards. During this fight the prosecutrix partly dressed herself and ran out of the house. She went to the discotheque where she spoke to Daley's sister, and then went to her home where she made a complaint to her mother, who took her to the police station. According to Corporal Matthew it was then about 2.10 a.m. From there she was taken to Glendon Hospital where she was examined by Dr. Underhill. Her panty and panty girdle were found to have blood on them. There was a bruise on the left side of her forehead; her vulva was moist swollen and bleeding and examination of a vaginal swab revealed actively living spermatozoa

6 At about 7a.m. on the 26 ^th the witness Sgt. Griffith went to Riley's bedroom where he found the missing button and the earring, which was broken.

7 William Riley was an important witness for the Crown. He said that shortly after midnight of the 25 ^th December he went to his premises along with two other persons. He found a number of persons there including the appellants Robin and Carr and the witnesses Belle Lindo and Molly White. He went to the bathroom and while undressing there he heard the noise of a young woman's voice coming from his bedroom. She vas groaning. Dressed only in his briefs he went to the bedroom and found the door closed. He forced it open, switched on the light and saw the appellant Matthew come off the prosecutrix who was lying on his bed naked. Matthew was also naked. He then saw the appellant Richards on top of the prosecutrix having intercourse with her. He went to the head of the bed and the prosecutrix held his hand. Richards came off of her and she whispered something to him. He pulled her off the bed and spoke to her; she began to dress. Richards attacked him and threw him on the ground. The appellant Robin came to his assistance. Richards cut him (Riley) across his left leg and ran out of the house. He denied going on the prosecutrix in a sexual position.

8 It will be observed that there was a serious discrepancy between the evidence of the prosecutrix and that of Riley in that the latter alleges that Richards assaulted the girl immediately after Matthew and does not implicate the appellants Daley, Robin and Carr.

9 Elizabeth Allen, mother of the prosecutrix, gave evidence of the complaint made to her by her daughter early in the morning of the 26 ^th. She also stated that soma time after the incident the appellants Carr and Richards came to her home. The appellant Carr told her that he is very sorry for what he had done to her daughter and he came to see if he could settle the case. She told him no.

10 Sgt. Griffith gave evidence of statements made to him by the appellants Richards, Daley, Carr and Matthews. Richards, he said, stated that after the calypso show he and Daley went to Robin's where he met Robin's girl friend, Belle Lindo and his own girl friend. He got into a dispute with Robin; they fought and he left with his girl friend.

11 Daley told Sgt. Griffith that from the show he went to the discotheque and then to Robin's house with his girl friend Beatrice Edwards. They went into the bedroom and remained there for some time. He did not see the prosecutrix. Carr, when pointed out by the prosecutrix as one of the men who had raped her, was alleged to have said that he had gone straight home from the calypso show. Later, when cautioned, he said that after the show he went to the discotheque and was there until about 12.45 a.m. He then got a lift to Daley's home where he was staying and remained there until morning when the police came.

12 According to Sgt. Griffith, Matthew told him that he went to Robin's house with the prosecutrix and met Robin there. After having a meal he went to the discotheque with the prosecutrix but they did not go in. He left her outside the discotheque and went to Endeavour Club with another girl, with whom he had sexual intercourse. The police met him dancing at the Endeavour Club.

13 Each of the appellants made a statement from the dock. Ally, except Matthew, denied having interfered with the prosecutrix. Daley and Richards amplified their statements to the police. Richards said that he had seen Riley having sexual intercourse with a girl in an open bedroom. He had got into a fight with Riley because he laughed at him, and Robin had come to Riley's assistance. Daley's girl friend Beatrice Edwards gave evidence in support of his story. An earlier statement made by her to the police was put in evidence to discredit her.

14 Robin said that he was at home with his girl friend at about 11.25 P.m, when Daley and Edwards came. Later Matthew arrived with the prosecutrix. Each couple was in a different bedroom. Riley arrived and went his room and Matthew left. Later, Richards arrived and vent to Riley's room and there was an argument and a fight; he tried to break up the fight. He called his girl friend Belle Lindo as a witness to support his statement that he did not leave his room after Matthew arrived until the quarrel began between Richards and Riley. She was cross-examined on a statement she had previously made to the police and made certain admissions to which we shall refer later.

15 Carr again denied having gone to Robin's house on the night of the 25 ^th, He admitted having gone to see Elizabeth Allen but denied her version of the interview; he had told her that “I know nothing about your daughter and talk to her for me please.” His witness Joseph Meade said that he added that “I am innocent of what they have me in.”

16 Matthew's statement differed substantially from his earlier statement to the police. He admitted going with the prosecutrix to Robin's home and having sexual intercourse with her in Riley's room, but said that this took place with her full consent. He said that while he was having intercourse Riley entered the room, ordered him out and pulled him off...