Jermaine Nesbitt v Donald Grant (Police Sergeant) 1999 Appellate Jur. No. 29

• Jurisdiction: Bermuda
• Judgment Date: 24 September 1999
• Docket Number: Appellate Jurisdiction 1999 No. 29
• Date: 24 September 1999
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Ward, CJ

Appellate Jurisdiction 1999 No. 29

BETWEEN:

Jermaine McDonald Nesbitt

Appellant

and

Donald Grant (Police Sergeant)

Respondent

Ms E I Christopher for the Appellant

Ms L Basden of the DPP for the Respondent

R v ViolaUNK [1982] 3 All ER 73

R v MillsUNK (1978) 68 Cr App R 327

R v LawrenceUNK [1977] Crim LR 492

Wright v NicholsonUNK (1970) 54 Cr App R 38

R v GalbraithUNK [1981] 2 All ER 1060

Watt v ThomasUNK [1947] 1 All ER 582

Criminal Code Act 1907, s. 329(1)

Unlawful carnal knowledge — Appeal against conviction and sentence of 2 years

JUDGMENT

On 4th May 1999 the appellant was convicted of the offence that he, between the 1st day of March and the 31st day of October 1997 in Sandy's Parish, did have unlawful carnal knowledge of a girl aged 14 years. The girl was born on the 3rd February 1983. At that time the appellant was 25 years old, having been born on 5th June 1972. He was sentenced to a term of imprisonment for two years. He now appeals against his conviction and sentence.

The evidence was that the parties were members of the same household which they shared with other family members. The complainant testified that some time in the summer of 1997 while on a journey from their house at Spring Benny Road along a track which provided a short cut to the Maximart shop, the two of them engaged in an act of sexual intercourse near a broken down house. Medical evidence showed that on or about 10th September 1997 the complainant conceived and as a result gave birth to a child on the 22nd May 1998.

The first ground of appeal was that the learned magistrate erred in law and/or failed to properly exercise his discretion when he rejected the appellant's application under section 329 of the Criminal Code to adduce evidence of the complainant's pervious sexual activity. The appellant wished to have the complainant cross-examined as to whether she had had sexual intercourse with two named persons other than the appellant and whether she had told the police that she did not know for whom she was pregnant.

Section 329(1) of the Criminal Code Act 1907 reads:

If at a trial a person is for the time being charged with a sexual offence, no evidence shall be adduced, and no question in cross-examination shall be asked at the trial about any sexual activity of the complainant, other than the sexual activity that forms the subject matter of the charge, whether with the accused or with any...