Tait v R 1999 Criminal Appeal No. 26

• Jurisdiction: Bermuda
• Judgment Date: 17 November 2000
• Date: 17 November 2000
• Docket Number: Criminal Appeal No. 26 of 1999
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Sir James Astwood, P.

Sir Derek Cons J.A.

Philip Clough J.A.

Criminal Appeal No. 26 of 1999

Allan Rudolph Tait

and

The Queen

cc Mrs. P. Harvey-Burch for the Appellant

cc: Mrs. V. Graham-Allen for Dept. of Public Prosecutions

R v GalbraithUNK 73 Cr App R 124

R v BrittonUNK [1987] 2 All ER 412

Reid v R [1978] WIR 254

Criminal Code 1907, s. 325

Serious sexual assault — Appeal against conviction — Use of statements as evidence — Consent — Misdirection of jury — Retrial

JUDGMENT

Cons J.A.

The Appellant, Allan Rudolph Tait, was convicted in October last year by the majority verdict of a jury before Assistant Justice Storr of the offence of serious sexual assault, contrary to Section 325 of the Criminal Code Act 1907 and was sentenced to 9 years imprisonment. At the same time he was acquitted unanimously by the jury of the offence of stealing, contrary to Section 332 and 341 of the same Act. He now applies for leave to appeal the conviction. An application with regard to the sentence has been withdrawn.

The evidence given by the complainant, reduced to the barest essentials, was that in the very small hours of the morning of 27^th March last year she was riding her motor cycle along Bobs Valley Road when the Appellant flagged her down and asked for a lift to White Hill. But as she drove along he caused her instead, by threatening, as she understood him, to kill her otherwise, to drive to a secluded area by the Railway Trail, known as Woodsies, where, by the use of brute force and further threats, he raped her. (The Appellant's evidence was that their sex had been consensual). Following the rape, the complainant said, the Appellant tore off and kept her gold earrings.

That evidence, if accepted, would clearly justify a verdict of guilt. Nor are we persuaded that the testimony of the complainant, as recorded, was so inherently weak or vague or so inconsistent with other evidence (other than that of the Appellant) as to fall within the principle enunciated in R v GalbraithUNK73 Cr. App. R124. The judge acted correctly to reject the submission of no case. There is no merit in this aspect of the application.

Then it is said that the verdict of guilty cannot stand in the face of the acquittal for stealing, that as the jury did not believe the complainant with regard to her earrings, the jury ought also to have disbelieved her with regard to the rape. That does not necessarily follow. A jury is not bound to accept or reject the evidence of a witness in total. There may well be extrinsic factors which lead a jury to accept or reject the evidence in part. In the present instance the jury were possibly influenced on the one hand by the fact that within only a few hours of the incident no earrings were found on the Appellant or in the house he shared with his mother and sister, and on the other, that the complainant drove immediately to the Police Station, had injuries to her neck and breast and that the Appellant, during...