By Paul Taylor QC
The Eastern Caribbean Supreme Court
The Court Of Appeal Commonwealth Of Dominica
Appeal against conviction and sentence
– Unlawful sexual intercourse with a person under 14 years – Corroboration warning – Section 28 Sexual Offences Act – Interruptions by trial judge- balanced and impartial summing up – good character direction - retrial
Fontaine v The State
F was convicted of unlawful sexual intercourse with VC (when she was aged 11). He was sentenced to 10 years’ imprisonment. He appealed against his conviction and sentence.
The issues in the appeal were:
- whether the judge erred by failing to assist the jury in determining what evidence amounts to corroboration in a sexual offence;
- whether the 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;
- whether the judge failed to give a balanced and impartial summary of the cases for both the prosecution and the defence;
- whether the judge, in giving the good character direction, failed to direct the jury fully on how to assess the elements of credibility and propensity;
- whether the verdict was unsafe and unsatisfactory;
- whether the sentence imposed was manifestly excessive.
Held: allowing the appeal, quashing the conviction.
- Corroboration warning: There was no requirement of corroboration in sexual offence cases in Dominica by virtue of both judicial authority and section 28 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.
[Section 28 reads as follows: “Subject to section 32, where an accused is charged with an offence under this Act, corroboration is not required for a conviction and the Judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration, but may direct the jury as follows: ‘Testimony which you believe, given by one witness, is sufficient for the proof of any fact. However, before finding any fact to be proved solely by the testimony of a single witness, you should carefully review all the testimony upon which the proof of the fact depends.’”]
- Judicial interventions: 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.
- Summarising the defence case: 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.
- Good character direction: 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.
- Sentence: 10 years’ imprisonment was not so excessive as to merit appellate interference.
- Retrial: The Court considered whether there ought to be a retrial of the appellant. The incident leading to the arrest, charge, trial and conviction of the appellant occurred in 2012, when the VC was an 11 year-old child; she is now a young woman, 19 years old. The appellant himself would have been 49 at the date of the incident and is now 57 years old. Justice will probably not be served with respect to either of them if the events of that night in October 2012 have to be virtually relived by the parties and others around them. Witnesses may also be unavailable or unwilling to participate in a new trial likely to take place more than 8 years after the events or circumstances about which they testified at the previous trial. Granted, public interest is always best served by perpetrators of crime, particularly serious crimes like unlawful sexual intercourse with a child, being tried, convicted and punished for their crimes. However, public interest is also not well served by unfairness to accused persons, such as might be occasioned by delays in the trial process not caused by the accused persons themselves. So, to the extent that a new trial will result in a verdict having to be given by a jury over 5 years later than would have been the case if the trial judge had not fallen into error, swings the balance decidedly against a retrial. The balance is further swung against retrial by the fact that the appellant has spent in excess of 4 years and 9 months in prison between the date of his conviction on 14th July 2015 and the date of this judgment. Indeed, when one factors in that a ‘prison year’ in Dominica is equivalent to 8 months on the calendar, the appellant would effectively have served over 7 years in prison, that is, more than 70% of the sentence imposed by the trial judge. A new trial should not therefore be ordered.
For a recent example of an appellate courts approach to the impact of judicial interventions (in a civil trial setting) see the Supreme Court (UK) case of Serafin v Malkiewicz and others  UKSC 23.
Judicial Committee of the Privy Council
On appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda)
Money laundering legislation – civil forfeiture order – whether civil or criminal in nature – proportionate nature of order – “reading down” legislation to ensure constitutionally compliant
Williams v The Supervisory Authority (Antigua and Barbuda)
 UKPC 15
This was an appeal to the Privy Council from the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda). It concerned the operation of the regime in Part IV of the Money Laundering (Prevention) Act 1996 (as amended) (“the MLPA”), headed “Freezing and Forfeiture of Assets in Relation to Money Laundering”, and in Part IVB of that Act, headed “Civil Forfeiture”. The Board considered whether the legal nature of the regime was civil or criminal, and whether it was inconsistent with the Antigua and Barbuda Constitution.
The MLPA enacts a range of measures to counter money laundering and to deprive persons of the proceeds of crime.
The Board held that:
- The claim for a civil forfeiture order does not involve charging the appellant with a criminal offence;
- There has been no violation of the appellant’s constitutional rights arising from the application of the combined regime in his case.
Proportionality of the civil forfeiture order
97. The making of the civil forfeiture order in the present case was a proportionate measure which did not violate the appellant’s constitutional rights. It is not necessary in this case for the Board to decide definitively whether in every possible case brought under the combined regime in the MLPA the award of a civil forfeiture order will be proportionate. As presently advised, the Board thinks it unlikely that many, if any, cases would arise in which the due application of the combined regime in accordance with its terms would be disproportionate and in breach of a defendant’s constitutional rights…. However, the Board notes that if a situation arose in which it would be disproportionate to make a civil forfeiture order, it would be open to the court, in applying section 20A(1), to hold that although the statute says that the Authority may apply for such an order, it would be inconsistent with the defendant’s constitutional rights under section 3(a) or (c) or section 9 to permit it to do so. Further, it would be possible to read an appropriate qualification into section 20A(2), so that it required the making of a civil forfeiture order “except in so far as such order would be disproportionate and thus breach section 3(a) or (c) or section 9 of the Constitution”: a similar qualification was read into the United Kingdom civil forfeiture legislation in the Waya case, at para 16. The same qualification can be read into section 19A(1A) in relation to the making of a freeze order.”
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