Franklyn Perkins v The Queen
| Jurisdiction | Montserrat |
| Judge | Williams JA |
| Judgment Date | 28 November 2018 |
| Neutral Citation | MS 2018 CA 3 |
| Court | Court of Appeal (Montserrat) |
| Docket Number | MNIHCRAP2017/0005 |
| Date | 28 November 2018 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mde. Janice M. Pereira Chief Justice
The Hon Mr. Paul Webster Justice of Appeal [Ag.]
The Hon. Mr. Terrence F. Williams Justice of Appeal [Ag.]
MNIHCRAP2017/0005
Mr. David Brandt for the Appellant
Mr. Henry Gordon for the Respondent
High Court criminal appeal - Indecent assault — Right to give unsworn statement — Recent complaint — Appropriateness of judge's questioning — Adequacy of judge's directions relating to complainant's distress — Section 137 of Criminal Procedure Code of Montserrat — Compensation awarded
Williams JA [AG.]:
The appellant is a physician who, at the time of trial, was 67 years of age and had been practicing for almost 40 years. On the 1st day of December 2017, he was convicted by a jury on an indictment charging him with the offence of indecently assaulting a young lady of 19 years contrary to section 122(1)(b) of the Penal Code. 1 The young lady was his patient and shall be referred to as L in this judgment. The learned trial judge sentenced him on 12th March 2018 to 18 months imprisonment suspended for 18 months and to compensate L in the sum of EC$10,000.00 in 3 months or serve 6 months imprisonment in default.
This appeal proceeded on five grounds filed by the appellant's counsel in a notice of motion dated 6th November 2018. 2 The grounds were:
“GROUND 1
The Learned Trial Judge erred in law when he ordered the appellant to pay $10 000.00 in compensation to L in three months or serve 6 months in default, separate from the suspended sentence without first ascertaining the Appellant's means.
GROUND 2
The Learned Trial Judge failed to direct the jury effectively or at all on the law of recent complaint and wrongly allowed in evidence the particulars of recent complaint allegedly given to her boyfriend by the virtual complainant after she was beaten by him.
GROUND 3
The learned judge misdirected the Jury and himself on the issue of demeanour. At page 135–136 of the record he said:
“Sharmen Williams told you that on returning to the office she observed L was perturbed and nervous. This is not evidence of what happened with Dr. Perkins, nor evidence that L is telling the truth. It is merely evidence that something had happened. It remains your task to determine what.”
GROUND 4
The learned Trial Judge cross-examined the Appellant in a way more suitable for a prosecuting counsel than a judge: such questions greatly impaired his defence to such a degree to make it disappear.
GROUND 5
The Learned Trial Judge erred in law when he failed to give the Appellant the right to give an unsworn statement from [the] Dock.”
L's evidence was that she went to the appellant's surgery accompanied by her boyfriend. She went to the examination room where she met the appellant. After the examination, the appellant requested that L hug him. On doing so, he held on to her, rubbed and kissed her in the manner described in the indictment, and pulled her to his chair. The assault went on for about half an hour, ending as the appellant's secretary came knocking at the door.
L left and went outside to her boyfriend, she was crying and trying, with difficulty, to speak. L told her boyfriend that the appellant “was inside there feeling [her] up”. She then “told him what happened and he [got] vex” whereupon her boyfriend hit her once on the foot in disapproval of her “permitting” the assault.
L's boyfriend confirmed that L was in the examination room for over a half hour. It was his enquiry as to how much longer L would be that led to the secretary knocking on the examination door. L exited looking sad. He asked her what happened, and she related a fulsome account. In cross-examination he admitted to hitting L on her foot because she was not responding to him and seemed in shock. Afterwards, she started to tell him what had happened. In re-examination he explained that L's detailed account was after he hit her.
The prosecution also called, Sharmen (Charmaine) Williams, L's co-worker who testified that, on the day in question, when L returned from her doctor's appointment, she seemed perturbed and nervous.
At the close of the Crown's case, the learned trial judge advised the appellant as to his options of giving sworn testimony or remaining silent. The appellant gave sworn testimony denying the assault.
I shall treat with the grounds as argued.
On ground 5, counsel for the appellant argued that the common law right for a defendant to give an unsworn statement was extant and that the judge erred in not advising the defendant accordingly. Counsel conceded that the judge's advice to the defendant was in harmony with section 137 of the Criminal Procedure Code 3 as that section makes no reference to the option of an unsworn statement. However, counsel argued, the right to make an unsworn statement had to be abrogated by an express provision.
On ground 2, counsel for the appellant argued that the content of the complaint after L reported to her boyfriend that the doctor had “touch [her] up” ought not to have been admitted because that content came after the boyfriend had hit her on her leg. This meant that the complaint was not voluntary. Further, counsel argued that the complaint ought not to have been admitted as L did not testify that she had related the details of the incident as her boyfriend testified had been complained by her to him. No authority was relied on for either proposition. Importantly, as shall be discussed below, counsel for the appellant conceded that the complaint related in the boyfriend's testimony was consistent with L's examination in chief.
Counsel for the respondent countered by arguing that there was no requirement that the complainant must first describe the details of the complaint made for the witness testifying as to the recent complaint to confirm. Counsel for the respondent went on to submit that the evidence did not support the appellant's assertions that L was beaten.
On ground 3 much was made of the judge's directions as to evidence of L's distress. The directions were:
“Sharmen Williams told you that on returning to the office she observed [L] was perturbed and nervous. This is not evidence of what happened with Dr. Perkins, nor evidence that [L] is telling the truth. It is merely evidence that something had happened. It remains your task to determine what.” 4
Counsel for the appellant, in arguing ground 3, submitted that the direction should have been similar to that recommended in paragraph 20–13 of Archbold 2012:
“The weight to be given to evidence of the complainant's apparent distress varies infinitely, and a jury should be directed that although such evidence may amount to corroboration, they should be satisfied that there is no question of it having been feigned before they treat it as such; it should not be routine to direct the jury that little weight should be accorded to such evidence, although in an appropriate case, they should be alerted to the sometimes real risk that such evidence might have been feigned…”
Counsel conceded that the judge's direction did not tell the jury that L's demeanour could be corroborative but emphasised that insufficient guidance was given as to how to treat it.
Counsel for the respondent distinguished the cases relied on in Archbold and contended that there was no need to direct a jury that the demeanour could have been feigned because of the “temporal proximity”. Counsel also reminded the Court of the proviso and noted the strength of the prosecution's case.
As regards ground 4, counsel for the appellant criticised the following examination of the appellant by the judge:
“Question: In the circumstance that Mr. Brandt is exploring if these things had happened would it be okay in the context of being a doctor conducting an examination to assume she was consenting?
Answer: In a doctor's context it would not be okay.
Question: Is that what really happened here. That those things she describes and you thought she was consenting. Is that what really happened?
Answer: No” 5
Counsel deplored these questions as smacking of the prosecuting advocate. When asked to state precisely what was wrong with the questioning, counsel explained that the judge had asked the appellant a question in the appellant's professional capacity when he was not being so tried. No authority was cited in support.
Counsel for the respondent pointed out that the questioning followed from a topic, including hypotheticals regarding his profession, which had just been traversed by the appellant's counsel in re-examination.
Ground 1 concerned the order for compensation. Counsel for the appellant claimed that the judge did not consider the appellant's means. Counsel was at pains to caution against making assumptions in this regard. Criticism was also levied for the fact that L had not requested any compensation. When asked to state the appropriate quantum of compensation given the appellant's means, half of the sum ordered was proffered.
Counsel for the respondent answered this ground by stating that the law did not require the victim to request compensation, or that the judge conduct a means test. Nevertheless, the judge had means in mind and had evidence of means. Counsel noted that the award was a small one, appropriate for cases where there was no physical injury or no proven psychological harm. Finally, he argued that the sentence was, on a whole, lenient and that, given the appeal of the compensation, this Court could review the entire sentence. In reply, counsel for the appellant urged the Court to not regard the appeal of the compensation order as an appeal of the entire sentence.
The...
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