Nirmalan Anandacoomarasamy v Angela Cox (Police Constable)

• Jurisdiction: Bermuda
• Judgment Date: 10 April 2008
• Date: 10 April 2008
• Docket Number: Appellate Jurisdiction 2007 No. 31
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Ground, CJ

Appellate Jurisdiction 2007 No. 31

BETWEEN:

Nirmalan Anandacoomarasamy

Appellant

and

Angela Cox (Police Constable)

Respondent

Mr M Pettingill for the Appellant

Ms C Clarke for the Respondent

The following cases were referred to in the judgment:

R v TurnbullELR [1977] 1 QB 224

BarnesUNK [1995] 2 Cr App R 491

Sexual assault — Appeal against conviction — Identification evidence

JUDGMENT of Ground, CJ

1. The appellant was convicted on 18 September 2007 of committing a sexual assault on a female on 22^nd December 2006. The assault alleged was placing his hand upon her thigh while sitting next to her on a bus.

2. The prosecution case was that the appellant boarded the bus at the Hamilton depot, and sat next to the complainant although other seats were empty. When the bus left she dozed off and was awoken by a hand on her right leg by her knee. She looked at the man, but said nothing. She thought she might be dreaming. She dozed off again and the sequence was repeated. Again she dozed off and again she felt a rubbing, this time higher up. She then lifted her handbag and saw the hand of the man sitting next to her. At that point she twice said out loud that the man had assaulted her, but no-one else on the bus did anything. The man, however, got up and went to the front of the bus, saying he had done nothing, and got off at the next stop.

3. The complainant did not immediately report the matter, but did so later ‘after a certain e-mail came out’. I take that to mean that she saw an e-mail about similar assaults, and then decided to report the one on her. Whatever the reason, the result was that she did not identify the appellant as her assailant until 17 February 2007, when she picked him out of an identification parade. It appears that the description that she gave of her assailant was that he had ‘a neatly shaved goatee beard1,’ but at the time of the identification parade the appellant was clean shaven2. While that may not be a very significant point, because her assailant could easily have shaved, it nevertheless remains a factor to be taken into consideration.

4. The case was tried with another alleged assault on another female under similar circumstances, but the learned Senior Magistrate acquitted the appellant on that charge on the ground that her identification of him was unreliable. That appears to have been on the basis that the other complainant had seen a photograph of the appellant before the identification parade. In such a case it would have been more appropriate to dismiss the case at the...