Richardson Fontaine v The State

• Jurisdiction: Dominica
• Judge: Michel JA
• Judgment Date: 13 May 2020
• Neutral Citation: DM 2020 CA 2
• Court: Court of Appeal (Dominica)
• Docket Number: DOMHCRAP2015/0007
• Date: 13 May 2020

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

DOMHCRAP2015/0007

Between

Richardson Fontaine

Appellant

and

The State

Respondent

Appearances:

Mrs. Dawn Yearwood-Stewart for the Appellant

Ms. Evelina Baptiste, Director of Public Prosecutions for the Respondent

Criminal appeal – Appeal against conviction and sentence – Unlawful sexual intercourse with a person under fourteen years – Corroboration warning in sexual offence cases – Section 28 of the Sexual Offences Act – Whether trial judge erred by failing to assist jury in determining what evidence amounts to corroboration in a sexual offence case – Whether interruptions by trial judge, of defence counsel, had effect of preventing counsel from fully and forcefully addressing the jury and/or prejudicing the jury's mind against appellant – Whether trial judge failed to give a balanced and impartial summary of the cases for the prosecution and the defence – Whether trial judge failed to adequately direct jury on elements of credibility and propensity when giving good character direction – Whether verdict was unsafe and unsatisfactory – Whether sentence imposed was manifestly excessive

The appellant, who was married, was engaged in an extra-marital affair with a woman named Miranda, who is the cousin of the virtual complainant (“the VC”). On 23 ^rd October 2012, the VC (who was 11 years old at the time) spent the night at Miranda's home, where the appellant had sexual intercourse with her. The following morning, the VC returned to her home and left later that morning for school. After the VC left, her mother noticed what appeared to be blood on the underwear which the VC was wearing when she returned from Miranda's house. When the VC returned home from school, her mother questioned her about the blood-stained underwear and the VC told her what had happened at Miranda's home. Following this, her mother went to Miranda's home to show her the underwear that the VC had been wearing when she came from Miranda's home that morning. The VC was subsequently examined by Miranda at the Health Centre where Miranda worked as a nurse, and a few weeks later was examined by a medical doctor at the Portsmouth Hospital. Following the examination at the Portsmouth Hospital, a report was made to the police, investigations were conducted and the appellant was charged for unlawful sexual intercourse with, and indecent assault of, the VC. The appellant was tried twice for both offences. The first trial produced a mistrial, while the second produced a conviction for unlawful sexual intercourse and a sentence of 10 years' imprisonment.

The appellant appealed against his conviction and sentence. The issues which arose for this Court's determination, based on the grounds of appeal are: (i) whether the learned judge erred by failing to assist the jury in determining what evidence amounts to corroboration in a sexual offence; (ii) whether the learned judge's interruptions of defence counsel during closing arguments had the effect of stultifying or preventing her from fully and forcefully addressing the jury and/or prejudicing the jury's mind against the appellant; (iii) whether the learned judge failed to give a balanced and impartial summary of the cases for both the prosecution and the defence; (iv) whether the learned judge, in giving the good character direction, failed to direct the jury fully on how to assess the elements of credibility and propensity; (v) whether in the circumstances of the case, the verdict was unsafe and unsatisfactory; and (vi) whether the sentence imposed on the appellant was manifestly excessive in all the circumstances of the case.

Held: allowing the appeal, quashing the conviction, setting aside the sentence and discharging the appellant, that:

• 1. The requirement of corroboration in sexual offence cases is non-existent in the Commonwealth of Dominica by virtue of both judicial authority and the legislative provision contained in section 28 of the Sexual Offences Act. Accordingly, the trial judge was prohibited from giving a corroboration warning in the instant case, but was permitted to give the jury the direction in section 28 of the Act, which he did in fact give.

  Section 28 of the Sexual Offences Act, Act No. 1 of 1998 of the Laws of the Commonwealth of Dominica applied.

• 2. A judge, in a criminal trial, ought to intervene in more than a perfunctory manner during a wholly inappropriate address to the jury by trial counsel, or should take steps to address counsel's inappropriate address in his summation. In such instances, the essential question is whether or not the nature and extent of the interventions have resulted in the defendant's trial becoming unfair. It is clear that the interruptions by the trial judge did nothing to stultify defence counsel and prevent her from fully and forcefully addressing the jury. However, there was potential for serious prejudice of the jurors when the trial judge interrupted defence counsel's address to the jury to say that the appellant's engagement in an extra-marital affair “goes to the very matter that is very much your concern, good character”. The prejudicing of the jury's mind against the appellant was at the very least capable of causing a miscarriage of justice, and it cannot be said with any certainty that the verdict would have been the same had their minds not been prejudiced.

  Section 38(1) of the Eastern Caribbean Supreme Court (Dominica) Act Cap. 4:02 of the Laws of the Commonwealth of Dominica applied; Barry Randall v The Queen [2002] UKPC 19 applied; Peter Michel v The Queen [2009] UKPC 41 applied; R v Natalie Frances Woods [2011] EWCA Crim 1305 applied; Allie Mohammed v The State [1999] 2 AC 111 applied; Francis Eiley and others v The Queen [2009] UKPC 40 applied.

• 3. The posture adopted by the trial judge in failing to adequately summarise the evidence of the accused is not a good practice and ought not to be followed by judges in jury trials. Nonetheless, it is not every departure from good practice that renders a trial unfair. In this case, although the judge's failure to at least summarise to the jury the key parts of the accused's evidence, instead of picking parts and portions, sometimes with the aim of highlighting discrepancies in the evidence of both the prosecution and defence's witnesses, was undesirable, it did not render the trial unfair so as to justify quashing the conviction for unlawful sexual intercourse.

  Gregory Donnor v The State Criminal Appeal No. 25 of 2005 (Trinidad and Tobago) applied; Barry Randall v The Queen [2002] UKPC 19 followed.

• 4. The standard good character direction has two limbs. The credibility limb speaks to the greater likelihood of a person of good character being truthful than one of bad character, and the propensity limb speaks to the greater unlikelihood of a person of good character committing a crime, especially one of the seriousness of the crime with which the appellant was charged. The trial judge gave a good character direction which included both limbs and how to treat with them. This was necessary since the appellant had no previous convictions and his extra-marital affair had no bearing on the verdict which the jury was charged to render. But the trial judge was not required to, and probably ought not to have included in his direction to the jury the fact that the appellant had twice lied to the court. Nonetheless, this did not amount to a misdirection, nor was it of sufficient significance to negate the value of the good character direction which the judge did give.

  R v Hunter & Others [2015] EWCA Crim 631 applied; Andre Penn v The Queen BVIHCRAP2014/0006 (delivered 23rd November 2016, unreported) followed; Teeluck (Mark) and John (Jason) v The State (2005) 66 WIR 319 applied.

• 5. Though the trial judge did not establish the benchmark sentence for the offence of unlawful sexual intercourse with a minor in the Commonwealth of Dominica or any Eastern Caribbean Supreme Court member state, he did ascertain that the sentences imposed in recent years for unlawful sexual intercourse ranged from 3 to 25 years' imprisonment. He also addressed the aggravating and mitigating factors and the sentencing principles before arriving at a sentence of 10 years' imprisonment, on a charge with a maximum penalty of 25 years' imprisonment. It cannot be said that a sentence of 10 years' imprisonment in all the circumstances was so excessive as to merit appellate interference.

Michel JA

1 This is an appeal against the conviction and sentence of Mr. Richardson Fontaine, (“the appellant”) for the offence of unlawful sexual intercourse with the VC, aged 11. The appellant was convicted on 14 ^th July 2015 and was sentenced on 29 ^th September 2015 to 10 years' imprisonment.

Background

2 The appellant, who was married, was engaged in an extra-marital affair with a woman named Miranda, who is a cousin of the virtual complainant (“the VC”) and who lives in the vicinity of the VC's home. On 23 ^rd October 2012, the VC (who was 11 years old at the time) spent the night at Miranda's home, where the appellant had sexual intercourse with her. On the morning of 24 ^th October 2012, the VC returned to her home and left later that morning to go to school. After the VC left for school, her mother noticed what appeared to be blood on the underwear which the VC was wearing when she returned from Miranda's home. When the VC returned home from school, her mother questioned her about the blood on her underwear and the VC told her what had happened at Miranda's home. Following this, her mother went to Miranda's home to show her the underwear that the VC had been wearing when she came from Miranda's home that morning. The VC was subsequently examined by Miranda at the...