Martin v R

• Jurisdiction: Bermuda
• Judge: Clarke P,Bell JA,Gloster JA
• Judgment Date: 21 March 2025
• Docket Number: Criminal Appeal 2022 No 10
• Court: Court of Appeal (Bermuda)

Between:

Maleke Martin

Appellant

and

The King

Respondent

[2025] Bda LR 33

Before:

Clarke P; Bell JA; Gloster JA

Criminal Appeal 2022 No 10

In The Court of Appeal for Bermuda

Sexual exploitation of a young person by a person in a position of trust — Corroboration of the evidence of a child witness — Competence — The rule in Browne v Dunn — Safety measures governing the evidence of a vulnerable child witness

The following cases were referred to in the judgment:

MB v R[1999] EWCA Crim 2274

Wellman v R[1992] Bda LR 14

Browne v Dunn(1893) 6 R 67

R (on the application of Saifi) v Governor of Brixton Prison[2001] 1 WLR 1134

R v PMH[2018] EWCA Crim 2452

R v Lubemba[2014] EWCA Crim 2064

R v Rashid[2017] EWCA Crim 2

Wills v R[2011] EWCA Crim 1938

KC v R[2011] 32 VR 61

Fox v R[2008] Bda LR 69

R v Day[2003] EWCA Crim 1060

Ms E Christopher for the Appellant

Ms C Clarke for the Respondent

JUDGMENT ofBell JA

1. Maleke Martin, the appellant in this case, (“the Appellant”) was convicted on 9 December 2022 of three charges, two being the sexual exploitation of a young person by a person in a position of trust, contrary to section 182B(1)(b) and section 182B(1)(a) of the Criminal Code Act 1907 (“the Code”) respectively, and the third being the offence of showing offensive material to a child, contrary to section 182(c) of the Code. He was sentenced on 11 April 2023 to terms of imprisonment of 13.5 years, 16 years and 6 years respectively, the said terms to run concurrently, for a total of 16 years.

2. The notice of appeal was dated 28 December 2022, and contained the following grounds of appeal:

1. The Learned Trial Judge erred by inviting the jury to speculate that the Appellant had masturbated in the presence of the complainant.

2. The Learned Trial Judge erred in law by deciding to apply the principle of Browne and Dunn to the response to a question put to the Appellant by the Prosecution about telling the mother that he was removing a pair of underpants from the laundry to carry for the young complainant. The Learned Trial Judge failed to take sufficient account

• a. of the reason for not having asked the question of the mother

• b. that the purpose of the rule is to seek the truth of the matter, to ensure that justice is done, it will usually be possible to recall a witness where counsel has failed to put a point to the witness whether through oversight or misjudgment of the importance of the issue.

• c. there has generally been a relaxation of the rule in Browne and Dunn

• d. that the answer offered was not part of the defence case

3. The Learned Trial Judge erred by not forbidding the Prosecution to use the contents of the Appellant's phone against him, in this instance photographs. Notwithstanding that the Prosecution had been in possession of the Appellant's devices since before he was charged, a copy was never provided to the Appellant nor his counsel. The Prosecution had possession of them for 15 months. Weeks after the evidence of the Complainant was led and after the first day of trial which had included the Complainant's mother (whom the Appellant asserts took some of the photographs), the Prosecution implicitly threatened to use them against the Appellant in cross-examination. The appellant through counsel sought a copy of the devices. Because they were ‘not going to be used as part of the Prosecution's case’, no copy of the Appellant's phone was provided that would have given context to the photographs. The Appellant seeks immediate disclosure of a copy of his devices. The effect of the failure to disclose was that the Appellant was required to answer inflammatory questions without context in a manner which was likely to prejudice him in the face of the jury. In the Learned Trial Judge’ ruling when it was sought to introduce the photos as rebuttal evidence, the Learned Trial Judge stated that she didn't think this statement (of the person who inspected the phone) or the images behind this statement qualify as a rebuttal as to what D has said and she had no problem with DPP asking if D has seen C naked (depending on his answer could potentially allow the images to be admitted)

4. Both the Prosecution and the Learned Trial Judge alluded to the pre-recording of the Complainant in a way that was prejudicial to the Appellant. It was announced to the jury that they would not be able to review the Complainant's evidence, then the Prosecution referred to a shiver of the Complainant in her closing when all present for the pre-recording knew that the child suffered from severe eczema and was unusually cold. The Learned Trial judge alluded to the Complainant's reaction to her questions when there was a significant change in tone in the way in which she put them.

5. The Learned Trial Judge improperly posed questions to the Complainant at the end of the evidence notwithstanding that counsel were constrained throughout in the way in which they could ask questions.

6. The Learned Trial Judge erred in implementing the Child-Safeguarding legislation without the inception of any formalized training for the participants involved, including the intermediary.

3. The background circumstances are that the Appellant was a long-time friend of the complainant's partner, the complainant being the mother of the child victim. I will refer to them respectively as the Mother and the Child. In early August 2020 the Mother, her fiancé, her one year old child and the Child, then aged 7, had moved into a new home. The Appellant moved into the lower bedroom of the 2 storey house, which had access via an internal stairwell and an external sliding glass door. In late October 2020, the Mother had learned of the underlying matters complained of, and the Child had been interviewed by the police in the presence of a social worker.

4. Subsequently, on 2 March 2021, the Appellant was arrested and later that day a search of that part of the residence comprising his living quarters was conducted. During that search, several electronic items were seized, as well as a pair of child's underpants, which were located in a clear sealed zip-lock bag inside the Appellant's backpack. The same day he was interviewed under caution and replied “No comment” to the questions asked.

Submissions

5. Because of repeated failures on the part of the Appellant's counsel to file submissions in accordance with the court's orders, the Crown's submissions were in fact filed before those of the Appellant, but I will nevertheless deal with the Appellant's submissions first. Unhelpfully, not all of the grounds of appeal were addressed in the written submissions, and the first reference to the numbered grounds appeared on the eighth page. However, the preceding pages cover the second ground of appeal. Since there were no written or oral submissions on the first ground, I will assume that is not pursued. But the submissions did refer to the issue of corroboration, and I will therefore try to deal with the manner in which the Appellant's case on corroboration was put in the submissions.

6. The basis upon which the issue of corroboration arose was in relation to the items found in the Appellant's black bag. At this point it is necessary to give some context in relation to the items found in the bag. The evidence of the police officer who undertook the search was that he attended the Appellant's residence on 2 March 2021 and searched the Appellant's bedroom with another police officer. When doing so he located a black bag with the word “Security” written on it (the Appellant worked for a security company), and within the cavity of the bag he observed a clear zip-lock bag containing underwear or panties that a female child might wear. He did not open the zip-lock bag but placed it in a police evidence bag. He described the black bag as being a work bag, containing paraphernalia which a security guard might use.

7. The same officer conducted a further search of the Appellant's residence on 10 August 2021, again seizing electronic items, and also searched the Appellant's car, which contained the same black bag as had previously been searched. This time the officer found a pair of white and purple socks in the left side pocket of the bag. He left the socks inside the bag and seized the entire bag.

8. The submissions referred to the Crown's case that the items found in the black security bag corroborated the Child's evidence. The question had been addressed at a pre-trial hearing, and the Appellant's counsel had made written submissions on the issue. At a pre-trial conference held on 17 November 2022 (the trial began on 5 December 2022), the issue of corroboration was raised by Ms Christopher in the context of whether a direction needed to be given to the jury on the question, and the need for the judge to have ruled on the Child's competence before taking her evidence.

9. The submissions then relied on the case of MB v R[1999] EWCA Crim 2274, where the need to identify...