Gardiner v R

• Jurisdiction: Belize
• Court: Court of Appeal (Belize)
• Judge: Hogan, P.
• Judgment Date: 05 May 1979
• Neutral Citation: BZ 1979 CA 7
• Docket Number: Criminal Appeal No. 2 of 1979
• Date: 05 May 1979

Court of Appeal

Hogan, P.; Inniss, J.A.; Georges, J.A.

Criminal Appeal No. 2 of 1979

Gardiner

and

Regina

Criminal Law - Appeal against conviction and sentence — Rape

Facts: Girl of 16 — Trial judge did not warn jury that complaint made by girl to her mother was not corroboration — Medical doctor permitted to give inadmissible evidence at trial — Trial judge did not warn jury to ignore it — Trial judge directed jury not to consider issue of intoxication as possible defence — Whether jury misdirected — Finding that no cogent evidence of intoxication to be left to jury

Held: Although trial judge erred in admitting medical testimony as to lack of consent, no reasonable jury would have come to a different conclusion had the evidence been limited as it should have been to showing that the injuries were consistent with the lack of consent — Appeal against conviction dismissed — Appeal against sentence of 5 years imprisonment allowed — First offender — Citizen of repute — Sentence of 3 years substituted.

Hogan, P.

1 The appellant in this matter was charged with the rape of Bernadine Barrow, a girl of 16. He was convicted and sentenced to 5 years imprisonment.

2 Bernadine lived with her mother and other members of a family quite close to the home of the appellant. He had a refrigerator and Bernadine's mother would send her to the appellant's house to buy ice.

3 The prosecution's case was that on the night of September 3, 1978, Bernadine went to the appellant's house to buy ice taking with her a mug as a container. She knocked, the appellant opened, she asked for 5 cents ice, and he went to the refrigerator to fetch the ice. He came back with the tray and she held a hand out to him to take the mug as she thought but he held her right hand instead, pulled her inside, kicked the door shut, lifted her off the ground and with a hand over her mouth carried her to the bed in the bedroom which was dose by and visible from the open door. He struggled with her on the bed, pulling off her pants. From time to time she managed to scream but he succeeded in penetrating her vagina with his penis. Her evidence was that while she was screaming the appellant tore off her pants. As she screamed she “hollered” for her mother telling her that Mr. Gardiner was raping her.

4 A neighbour, Marie Courtenay, testified that from her bath house about 7:30 p.m., that evening, she heard a bawling from the appellant's house. Someone was shouting “Ay Mr. Gardiner you will kill me. You will kill me”. Then she heard a voice asking Mr. Heusner — neighbour and relative of the appellant to break down the door as the appellant would kill Bernadine.

5 After Bernadine had been gone for some 5 minutes her mother noting the delay sent a sister, Rose, to find out what had happened to her. Rose returned shortly after and told her mother something. The mother left for appellant's house and when she got there she heard Bernadine calling for her mother and shouting that Appellant was raping her and would kill her. Linda Augustus, Bernadine's aunt, who had come along with Bernadine's mother knocked on the door but with no effect.

6 So they fetched the neighbour and relative Mr. Heusner. He too knocked with no effect and eventually he forced open the door and burst into the house where he saw the appellant and Bernadine in the bed. Bernadine with her legs pulled up and the appellant on top of her. He pulled him off.

7 Bernadine was examined by Dr. Solis. There were scratches on her neck and arms. Her vagina was reddish and there were signs of semen indicating recent sexual intercourse. The appellant was himself examined shortly after and his penis was swollen, indicating recent intercourse. There were also signs of semen and scratches on the prepuce. The appellant, according to the doctor, showed signs of alcoholic intoxication but was not unconscious. There was evidence that immediately after the incident he came to his door with a piece of electric wire saying that it was too short. He is an electrician by trade.

8 The appellant gave evidence in defence. His story was that he had been having an affair with Bernadine, an affair which began because she made it plain that she wished to become involved. He testified that they had had sex on three occasions prior to September 3rd. On that night he had drunk a great deal and was tired. She came for ice and he was not minded to have sex but as he turned from the refrigerator where he had gone for the ice he saw her standing nude from the waist down in the bedroom, so in his words “I did what I usually would do”. She asked him to hurry. Suddenly she screamed that he would make them catch her. He put his hand over her mouth to quiet her. This went on for some 15 minutes until his brother in law pulled him off her. He said he had not heard any knocking outside nor had he heard himself called. At that time he was living alone his wife having left his house in May.

9 In attacking the verdict, counsel in the first instance urged that the summing-up was deficient in that the trial judge had not warned the jury that the complaint made by the prosecutrix to her mother was not corroboration. He did tell them that the law allowed it merely to prove consistency in her conduct and not to establish the truth of the facts contained in the complaint. It was argued that because the trial judge had not stated that it could not be corroboration the jury might be...