FW v The Queen

• Jurisdiction: Belize
• Judge: Sir Manuel Sosa P
• Judgment Date: 17 December 2020
• Neutral Citation: BZ 2020 CA 27
• Court: Court of Appeal (Belize)
• Year: 2020
• Docket Number: CRIMINAL APPEAL NO 18 OF 2011

FW

Appellant

and

The Queen

Respondent

Before

The Hon Sir Manuel Sosa President

The Hon Mr Justice Samuel Awich Justice of Appeal

The Hon Madam Justice Minnet Hafiz Bertram Justice of Appeal

CRIMINAL APPEAL NO 18 OF 2011

IN THE COURT OF APPEAL OF BELIZE AD 2020

L Banner and M Trapp Zuniga for the appellant.

C Vidal SC, Director of Public Prosecutions, and S Maharaj, Crown Counsel, for the respondent.

MAJORITY JUDGMENT

Sir Manuel Sosa P

Introduction

1 FW (‘the appellant’) is the father of CW, who, tragically, underwent the ordeal of being raped in her own home on numerous occasions during the period March 2005 to November 2006. Following a report made to them by CW, the police in Dangriga, Stann Creek District arrested the appellant in December 2007 and charged him with the crime of incest. On his arraignment on an indictment containing 10 counts of the rape of CW, he pleaded Not Guilty, thus rendering a trial necessary. At the end of his two-day trial before González J (‘the judge’) and a jury on 1 April 2011, the jury, after deliberating for less than two hours, found him Guilty on all ten counts. A memorandum dated 11 April 2011 from the Registrar to the authorities at the Hattieville Prison records that the appellant, referred to therein both by his correct name and, erroneously, by the name Frederick Casimiro, was sentenced for convictions on ten counts of rape and that the ten sentences imposed were to be served consecutively and added up to a total of eighty years' imprisonment. The logical inference from this is that each sentence was for the statutorily prescribed minimum term of eight years' imprisonment.

2 By the filing of the prescribed form headed ‘Notice of Appeal or Application for Leave to Appeal’ and dated 15 April 2011, the appellant appealed his convictions and purported to appeal his sentences. It is noteworthy that he disclosed in this form that no solicitor was acting for him at the time. As an unrepresented layman, he would not have known that which is trite law to any lawyer worth his salt in Belize, ie that in this jurisdiction there is no appeal as of right against sentence, in consequence of which an offender wishing to appeal his/her sentence must make application for leave to appeal. Because of the trite nature of the legal provision involved (section 23(1)(c) of the Court of Appeal Act), upon the case coming on for hearing on 9 June 2016, this Court proceeded as a matter of course not only to hear the appeal against convictions but also, without expressly so announcing, to treat the purported appeal against sentences as an application for leave to appeal. As to the Court's inherent power so to do there cannot be the slightest doubt.

Section 46 of the Criminal Code

3 It is convenient to set out at this early stage in the present judgment the terms of section 46 of the Criminal Code, which creates the crime of rape and provides for punishment therefor. Those terms are, in relevant part, as follows:

‘Every person who commits rape … shall on conviction on indictment be imprisoned for a term which shall not be less than eight years but which may extend to imprisonment for life.’

The record of the proceedings in the court below

4 This is yet another case from a group of cases (‘the group’) tried before the judge in 2011 in regrettable circumstances where (a) no court reporter was present in court to do what is normally done to be able later to prepare a transcript of the proceedings at the trial and (b) no audio recording could be produced when the time came to prepare a record of appeal for the assistance of all participants in the appeal. In strongly deprecating this disastrous and disgraceful occurrence once again, the majority of this Court incorporates by reference into this judgment the critical remarks the Court saw fit to make in its judgments in two previous appeals concerning cases from the group, viz Pérez (Harrim) v R, Criminal Appeal No 18 of 2012 (judgment delivered on 9 October 2018) and Marín (Solomon) v R, Criminal Appeal No 24 of 2011 (judgment promulgated on 2 November 2020). In the present case, the notes of the judge form the bulk of the slim record of proceedings in the court below.

The Crown case at trial

5 The Crown's burden at trial was to prove to the required standard, ie beyond reasonable doubt, that the appellant at the ten different times in question in the town of Dangriga had non-consensual sexual intercourse with CW. The Crown set about discharging this onus by means of evidence given by CW herself. As the legal argument advanced for the respondent before this Court has indicated, although the allegation made by CW before the police did not limit the number of times she was raped to ten, a practical decision was taken in the chambers of the Director of Public Prosecutions to indict on the basis that there had been ten different rapes committed on ten different occasions (none of which was referable to a specific date) during ten different months in 2005 and 2006. (The use of periods of one month in respect of each count is consistent with the opinion expressed by the Supreme Court of Ireland in ( DPP v EF Unreported, Supreme Court, 24 February 1994), as quoted in DPP v Mc Neill [2011] IESC 12, at para 24.) Faced with the resulting challenge, the Crown led evidence through CW which at times did not quite square with the fact that the indictment was for only ten counts of rape.

6 It was the evidence-in-chief of CW that, in March 2005, when she was 21 years old, her mother was in the United States of America and she was living on the Rivas Estate in Dangriga with her father, ie the appellant, and four other named persons, two of whom were her brothers while the other two were females. (The judge's notes shed no light on the relationship, if any, between these two females and C W.) The appellant was then a member of the Belize Defence Force. Referring to the rape the subject of the first count of the indictment, CW said it was perpetrated at a weekend and sometime after 9 pm. After her brothers had retired for the night, the appellant entered her room and awoke her, ordering her to go to ‘the storeroom’. She saw him by the light which was entering her room from the bathroom. Whether she actually went into the storeroom is unclear from the judge's notes. The appellant thereafter held her by the hand and led her into ‘the bedroom’, where he ordered her to strip. She was unwilling so to do; but it is clear, by necessary implication, that she obeyed the order in part. The bedroom was dark. The appellant kissed her on the neck, breasts and stomach and took off the rest of her ‘clothes’, presumably sleeping apparel. Somehow, she ended up lying on the bed. The appellant proceeded to take off his clothes and to penetrate her vaginally with his penis. She wept during the ordeal.

7 In further evidence-in-chief which obviously went beyond the ten counts of the indictment, she said that, after this incident, ‘it happened every month’, presumably if he was working. When, however, he was on holiday, it would happen twice a week. Things continued that way until November 2006.

8 CW generalised, for the most part, with respect to the other nine occasions on which she was allegedly subjected by the appellant to non-consensual sexual intercourse with him. She stated under examination-in-chief that he would take her into the room, undress her, have intercourse with her and apologise to her, saying that he loved her and that he was preparing her for the experience of sexual relations with a boyfriend in later life. She described her claimed helplessness in the face of his unwanted advances, pointing to their relative body sizes and his steadfast refusal to take No for an answer.

9 As regards the two counts relating to the month of November 2006, there was, however, a degree of specificity in her evidence. She testified concerning the first of these counts that, following sexual intercourse in her room, the appellant took her into his room and, telling her that he loved her, promised not to, in her words, ‘do that anymore’. While the notes of the judge refer to someone crying and praying that ‘one day this would stop’, they do not make clear who that person was. What is clear, however, is that it was the further evidence of CW that, despite the promise in question, she was subjected to a second outrage in November 2006.

10 It was also the testimony of CW that she decided to make a report to the police in December 2007 because she ‘could not take it anymore’. She did not make a report earlier than that because she was scared of the appellant, whom she pointed out in court as her father.

11 The judge's notes reveal that part of the cross-examination of CW was directed at discrediting her testimony on the grounds of her not having made an earlier report of the alleged sexual abuse, whether to her mother or to the police. Her explanation for the delay remained her fear of the appellant, a fear not only that he would hurt her but also that he would hurt her mother (presumably if she reported to her mother and the latter acted on the report). They also reveal a discrepancy in her story to the extent that, having testified under direct examination that she had been raped in her bedroom in November 2006, she said in cross-examination that ‘sex took place in his bedroom all the time’. She also complicated matters somewhat during cross-examination by stating that the house had only two bedrooms, one of which was the appellant's and the other for ‘us’, presumably the other members of the household excepting her mother (when she was in Dangriga). Her earlier testimony had suggested that she had a bedroom of her own.

12 From the judge's notes, it appears that the only other Crown witness was a police constable who testified that she arrested and charged the appellant with the crime of incest in December...