Williams v R

• Jurisdiction: Bermuda
• Judgment Date: 28 August 2020
• Date: 28 August 2020
• Docket Number: Appellate Jurisdiction 2019 No 11
• Court: Supreme Court (Bermuda)

[2020] Bda LR 49

In The Supreme Court of Bermuda

Appellate Jurisdiction 2019 No 11

Between:

Kenneth Hurf Williams

Appellant

and

The Queen

Respondent

Ms S Tucker for the Appellant

Ms M Sofianos for the Respondent

The following cases were referred to in the judgment:

F v F [2014] Bda LR 79

Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451

Millar v Eglin; Payne v Procurator Fiscal, Dundee[2001] UKPC D4

Porter v Magill [2002] 2 AC 357

Mengiste v Endowment Fund for the Rehabilitation of Tigray [2013] EWCA Civ 1003

Sexual offences against a child — Appeal against conviction — Fair trial within a reasonable time — Judicial bias — Material non-disclosure — Misdirection — Failure to properly hear defence case — Refusal to hear supplemental submissions

JUDGMENT of Subair Williams J

Introduction

1. The Appellant was tried, convicted and sentenced in the Magistrates' Court on an Amended Information (JEMS: 17CR00410) by Magistrate Tyrone Chin for the following offences against a female child:

Count 1

On a date unknown between 8 April 2014 and 20 April 2014, knowingly showed a 12 year old child offensive material namely, sexually explicit and You Tube videos contrary to section 182C of the Criminal Code (9 months imprisonment imposed)

Count 2

On a date unknown between 8 April 2014 and 20 April 2014, whilst being a person in a position of trust, did, for a sexual purpose, directly touch (with the hand) the breast of a young person under the age of 14 years old contrary to section 182B(1)(a) of the Criminal Code (section 182A(1)(a) appears to be a misstatement on the Amended Information) (6 months imprisonment imposed)

Count 3

On a date unknown between 5 August 2014 and 28 August 2015 whilst being a person in a position of trust, did, for a sexual purpose, directly touch (with the penis) the buttocks (under her clothing) of a young person under the age of 14 years old contrary to section 182B(1)(a) of the Criminal Code (section 182A(1)(a) appears to be a misstatement on the Amended Information) (18 months imprisonment imposed)

Count 4

On a date unknown between 5 August 2014 and 28 August 2015 whilst being a person in a position of trust, did, for a sexual purpose, directly touch (with the Appellant's penis) the buttocks (over her clothing) of a young person under the age of 14 years old contrary to section 182B(1)(a) of the Criminal Code (section 182A(1)(a) appears to be a misstatement on the Amended Information) (12 months imprisonment imposed)

Count 5

On 23 January 2016 intruded upon the privacy of a girl, in such a manner as to be likely to alarm a girl and did in fact alarm a girl, contrary to section 199(2) of the Criminal Code (6 months imprisonment imposed)

Count 6

On a date unknown between 5 August 2015 and 23 January 2016, in the Islands of Bermuda, wilfully and without reasonable excuse committed an indecent act in the presence of a child contrary to section 198(2) of the Criminal Code (9 months imprisonment imposed)

Count 8

On a date unknown between 1 January 2015 and 23 January 2016 did directly touch (with the Appellant's fingers) the vagina of a young person under the age of 14 years old contrary to section 182A(1)(a) of the Criminal Code (the term “child” appears to be a misstatement on the Amended Information) (18 months imprisonment imposed)

Count 9

On a date unknown between 1 January 2015 and 23 January 2016 did directly touch (with the Appellant's fingers) the vagina of a young person under the age of 14 years old contrary to section 182A(1)(a) of the Criminal Code (the term “child” appears to be a misstatement on the Amended Information) (18 months imprisonment imposed)

Count 11

On a date unknown between 1 January 2015 and 31 December 2015 did directly touch (with the Appellant's body) the body of a young person under the age of 14 years old contrary to section 182A(1)(a) of the Criminal Code (the term “child” appears to be a misstatement on the Amended Information) (18 months imprisonment imposed)

2. The misstatements on the charges identified above are of no real consequence to the issues of complaint on appeal. Section 182A pertains to the statutory meaning of a “young person” which is defined under section 182A(2) to be a person under the age of fourteen years. Unlike section 182A, section 182B applies to an offender who at the relevant time was in a position of trust or authority towards a young person. Also, unlike section 182A(2), a “young person” under section 182B(2) is more broadly defined as a person under the age of sixteen years.

3. The other distinction between section 182A and 182B relates to the maximum sentence of imprisonment which may be imposed on indictment. Under section 182A the maximum term of imprisonment on indictment is 20 years whereas the maximum penalty under section 182B (being in a position of trust or authority) is 25 years. However, there is no difference between the maximum sentence under section 182A and section 182B where sentence is to be imposed on a summary conviction. Whether or not the offender is in a position of trust or authority, the maximum sentence under both sections on summary conviction is 5 years imprisonment.

The Defence Statement at Trial:

4. On the Defence's pleaded case against the 2014 allegations, Mr Williams had only just started dating his girlfriend, Ms Theresa Rawlins. He said their relationship was new. Nevertheless, during this period they cohabited with her very young daughter and suffered the financial burden of household unemployment together. Mr Williams' case was that the Complainant spent a one week period with him in the house with Ms Rawlins and her daughter during August 2014. He claimed that he could not have possibly committed the 2014 offences because, without exception, he was out of the house on a daily basis in search of employment. He went so far as to say that he was out “knocking on doors, chasing up leads and following up with old clients”. He described his days to have started at 7:30am averring that he did not return to his Spanish Point home until 4:00pm and sometimes 5:00pm. He denied ever having taken the Complainant to any marsh land area, maintaining that he had no means to do so. His pleaded case was that he walked back and forth from Spanish Point to Hamilton City each day job hunting during these long hours at the time he was said to have committed these offences. His defence was thus an alibi defence. Otherwise, he said there was never a chance for him to be alone with the Complainant because when he was home both Ms Rawlins, whom he loved, and her daughter were also present.

5. It was accepted in the Defence Statement that in August 2015 the Complainant spent three consecutive weeks with the Appellant, Ms Rawlins (who was pregnant with a male child born the following month on 4 September 2015) and her now nearly-five year old daughter. This three week period was spent in the Appellant's Court Street residence. According to the Appellant, the Complainant's mother (“the Mother”) said that in aid of accommodating the Complainant, she would provide the Appellant and Ms Rawlins with money for food and necessities. The Appellant pointed out in his statement that she made a similar empty promise when the Complainant spent a week with them in 2014, so he did not believe that he would ever receive any such money, which in the end was never paid.

6. Mention is also made in the Defence Statement to two other 2015 visits by the Complainant to the Appellant's Court Street residence in 2015. The Appellant referred to an “episode of theft involving money that [the Complainant] is said to have taken from her mother” [paras 13–14 on page 18 of the Record]:

“When [the Complainant] had attend [sic] my home on those two occasions She told my girlfriend and me that she found the money which was approximately $100–$150. The first occasion she had $50.00 and I cannot remember if she had one or two $50.00 notes the second time. I'm not entirely sure of the exact amount now. We told her mom and at first she did not bat an eye but it was later discovered that this money was taken from her mother's sock draw. Her mother was up in arms at that and I recall her telling me distinctly that I should beat [the Complainant] when she was naked in the shower for taking her money. I remember being disturbed by that suggestion because I would never even think to strike my own kids in that way.”

7. The crux of the Appellant's defence to the 2015 allegations was stated in the Defence Statement as follows [paras 19–22 on Pages 20–21 of the Record]:

“19. These allegations are again being denied because they are untrue. They are untrue and I confirm such to be the case because I again was not in a position to have assault [sic] sexually or in any other way [the Complainant]. I was working this time and was not home during the working days at least and most times I was not in on the weekends as I was working several major renovation jobs during this period. So far as nights were concerned I was in the presence of friends almost on a nightly basis, including [the Complainant's father] who drank and relaxed at my residence regularly during the summer. They were often there when I got home from work and would be there well after I went to bed as they also slept over due to their state following nights of drinking.

20. [Theresa's daughter and the Complainant] shared a room and I shared a room with Theresa. When [the Complainant] first came to the home I was working with Mr Alfred Wolffe. We were renovating a home located at Abbott's Cliff belonging to the Trott's. This job commenced before the last week in July and ended on or about 15 August 2015. I did not and still do not have private transportation so I was catching the bus every day from town. I made 8:00am so I would leave at 7:15am and I worked until 5:00pm and needed to catch the bus back town. I got home every evening around 6:00pm...