R v Bell

• Jurisdiction: Bermuda
• Judgment Date: 30 November 1989
• Date: 30 November 1989
• Docket Number: Criminal Appeal No. 8 of 1989
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Sir Denys Roberts, Act'g P.

Mr. Justice Harvey da Costa, J.A.

Sir Alan Huggins, J.A.

Criminal Appeal No. 8 of 1989

The Queen

Appellant

and

Michael Allen Lee Bell

Respondent

B. Meade (Attorney-General's Chambers) for the Appellant.

J. Cooper (Messrs. Hallett, Whitney & Patton) for the Respondent.

Smith v R 1988 Criminal Appeal No. 6

R v BillamUNK [1986] 1 All ER 985

R v JacksonUNK [1988] CLR 850

R v TwiggTLR The Times 8 June 1988

R v Malcolm

Rape — Appeal by Crown against sentence of 9 years imprisonment — AIDS, HIV virus — Whether English authority persuasive

JUDGMENT

BACKGROUND

The Crown, to which leave was granted by a single judge on 24th April, 1989, appeals against the sentence of 9 years imposed on the Respondent on 10th April, 1989.

On the latter date, Bell pleaded guilty before Austin Ward J. to one count of rape and was sentenced to 9 years imprisonment, including the time already spent in custody.

The Crown's application was on the ground ‘that the sentence imposed by the learned judge on the said Michael Allen Lee Bell, of 9 years imprisonment, is manifestly inadequate in that it fails to take sufficiently into account the aggravating factors in this case’.

On 26th June, 1989, there was a joint application, by counsel on each side, for a postponment of the hearing of the Crown's application, in order that further evidence about AIDS might be produced to the Court.

It was proposed at that hearing that—

(a) evidence should be given by Dr. Cunningham, who carried out tests on the victim, and that he should be asked to produce his notes about her;

(b) an affidavit from a Government Medical Officer, showing the danger of passing on AIDS, should be produced;

(c) the victim should, if she consented, be further examined and a report on her present condition tendered.

We granted these applications and adjourned the matter to 7th November, when we heard full argument from both sides.

FACTS OF CASE

The victim, then aged 21, went to a cinema with her boy-friend on the 28th June, 1988. After the film, they attended a restaurant, and were there apparently seen by Bell, the respondent.

After they left the restaurant and were walking towards Cedar Hill, the boy-friend realized that he had left something in the restaurant and returned to get it. The victim continued alone. As she did so, the respondent came towards her and said ‘Good evening’. She ignored him.

Shortly afterwards, the victim took shelter in a porch, as it had started to rain. While she was there, Bell approached and butted her with his head in her stomach, without speaking.

Bell began to strangle the victim, who screamed and hit him. Bell slapped her and dragged her from the porch to a wall, threatening to kill her. Bell lay on top of her on the wall, but both fell to the ground. He pulled her up and hit her in the face. Next he punched her to the ground, tore her skirt, pulled down her underpants and punched her again.

Bell took out his penis and told her to suck it. When she refused, he hit her again. He forced himself between her legs and inserted his penis into her vagina and had intercourse. As he got up he told her ‘if you tell anyone I'll chop you.’

The victim ran to the restaurant where she complained to her boy-friend and another man. Shortly after, the police arrived, having been summoned by one of those who had heard the victim screaming.

Bell was arrested two days later and was examined by Dr. Cunningham. Tests carried out on Bell showed that semen recovered from the victim's vagina was of the same type as that of Bell and that Bell's blood contained the antibody...