The Queen v Rennie Gilbert

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Hobhouse of Woodborough
Judgment Date21 Mar 2002
Neutral Citation[2002] UKPC 17
Docket NumberAppeal No. 10 of 2001

[2002] UKPC 17

Privy Council

Present at the hearing:-

Lord Steyn

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

Sir Philip Otton

Appeal No. 10 of 2001
The Queen
Appellant
and
Rennie Gilbert
Respondent

[Delivered by Lord Hobhouse of Woodborough]

1

On 26th October 1999, after a trial in the High Court of Grenada before St Paul J and a jury which lasted less than two days in all, the defendant Rennie Gilbert was convicted on a single count of attempted rape and sentenced to seven years hard labour. The offence was alleged to have been committed on 25th November 1998 in the middle of the day on Bacolet beach St David's. The alleged victim was Nadisha Mapson, a 21 year old woman who worked as a shelf clerk in St George's. She had gone to the beach with two friends, Mearlyn Mahon and Kean Simeon. At one stage Miss Mahon and Mr Simeon went off together along the beach leaving Miss Mapson alone. Miss Mapson's evidence was that during this time she was approached by a young man whom she recognised as the defendant who had been at the same primary school as her and who she knew to live at Laura Land, St David's. He was only wearing underwear and had what looked like a jersey partly covering his face. He said: "I am going to rape you". He threw her to the ground and indecently assaulted her. In the course of the ensuing struggle, he cuffed her in the face and threatened her with an iron bar. She scratched him on his back with her fingernails. She saw her friends walking back along the beach and managed to escape and run towards them. She had only her bikini top on; formerly she had had on a bikini suit and tights. As she ran she turned and saw the defendant picking up some items from the ground where they had been. Later she found that a bag, sunglasses and shoes were missing. She said that the incident had lasted for about 15 minutes.

2

The only other prosecution witnesses were Miss Mahon and Detective Sergeant Frame. Mr Simeon was not called. Miss Mahon gave evidence in general support of Miss Mapson but did not see the incident or her assailant. She could only speak to the fact that they met Miss Mapson running towards the sea water with no underwear on. The detective sergeant gave evidence that the two women came to the police station at about 2.30 pm on the 25th and made a complaint. He went to the beach and found trampled sand and a pair of green/black tights at the place pointed out by Miss Mapson. The next morning he detained the defendant for questioning. He observed scratch marks on his back which appeared to be fingernail marks. The defendant said that he had got them in the bush that morning. The officer kept a record of his interview of the defendant but neither side adduced evidence of what the defendant had said.

3

The defendant represented himself at the trial. Their Lordships have been informed that he was not entitled to legal aid. The defendant's cross-examination of Miss Mapson was confined to challenging her knowledge of him and her ability to recognise him. He did not otherwise challenge her account of the incident. The defendant did not give evidence. He made an unsworn statement from the dock:

"My name is Rennie Gilbert. I live at Laura Land, St David's. I am a handyman. During the time the virtual complainant [ sic] say the incident took place I was at my aunt's residence at Westerhall St David's. I was home the day. I did not go anywhere. I was looking after my grandmother. She is more in bed but move about a little bit. I was unable to move about as I should as I was suffering a gunshot wound in my right leg. On 26th November 1998 the police came to me and said he want me at the station for questioning. He locked me in a cell. He never asked me any question. That was Thursday. The Friday he asked me if I know Nadisha Mapson. I told him no. I have no witness. My grandmother died."

The defendant then made a closing address to the jury lasting 7 minutes. The judge summed-up and the jury retired.

4

The only record of the evidence given at the trial (and the statement from the dock) is the trial judge's note. The depositions taken at the Magistrate's Court are also available but it appears that no use was made of them at the trial and they were not in evidence. There is a transcript of the judge's summing-up. He directed the jury upon the constituents of the offence, the burden and standard of proof. He stressed that the prosecution case depended upon the evidence of Miss Mapson and asked the jury: "Can you consider her a witness of truth?" At various points in the summing-up he specifically drew the jury's attention to differences between the evidence of Miss Mapson and Miss Mahon. He gave the jury a Turnbull direction on the reliability of identification evidence. He referred to the fact that Miss Mapson said that she had scratched the back of her assailant and that D.S. Frame said that he had seen marks resembling fingernail scratches on the defendant's back the next day. He directed them upon the proper way to take into account the claim of alibi raised by the defendant's statement from the dock. He did not give the jury any corroboration direction in relation to the commission of the offence of attempted rape or warn them of any danger of convicting on uncorroborated evidence.

5

The defendant appealed to the Eastern Caribbean Court of Appeal (Grenada) against his conviction. Legal aid was available but the defendant chose to represent himself. The Court of Appeal (Byron CJ, Satrohan Singh and Redhead JJA) allowed the appeal, quashed the conviction and ordered the release of the defendant. They did so on the single ground of the absence of a corroboration direction and warning. They considered that the summing-up was otherwise satisfactory but held that the judge should have followed and applied the decision of the Eastern Caribbean Court of Appeal in Pivotte v The Queen (1995) 50 WIR 114. This was a decision which rejected the approach adopted by the English Court of Appeal in R v Chance [1988] QB 932 and held that the direction must always be given. Satrohan Singh JA giving the leading judgment in Pivotte said at p.119:

"My considered opinion therefore is that in a sexual offence case, where identification is the main issue, the Turnbull guidelines and the corroboration rule should be used as a complement to each other and that the guidelines in Turnbullalone would not suffice. The corroboration warning must be given.

In the instant matter, the appellant having pleaded 'Not Guilty', and having introduced an alibi as his defence, thereby making identification the main issue, the burden remained on the prosecution to prove every element of the charges, including all the elements of the attempted rape. The appellant did not challenge the fact of the commission of these offences, but the issues constituting the offences were not formally admitted. Given these circumstances, and applying the law as I understand it, it is my judgment that the corroboration warning was necessary with respect to the offence of attempted rape, not only on the issue that the offence was committed but also on the issue that the appellant committed it. This warning was not given by the judge. I consider this non-direction to be a grave misdirection."

In the present case, the Court of Appeal recognised that the corroboration requirement had been decided to be outdated in England and had been abolished there by statute and referred to the fact that a draft Evidence Bill for Saint Lucia would follow the same course. But Byron CJ giving the judgment of the Court continued:

"What is the position now? Although this impending development in jurisprudence is a trend that is likely to affect all our jurisdictions, the requirement to give the corroboration warning is still part of our law, and cannot be ignored. In this case the nature of the evidence left a lurking doubt as to the safety of the conviction. We did not think it an appropriate case to consider the application of the proviso."

Byron CJ had earlier said that there was no corroboration of Miss Mapson's evidence that she had been indecently assaulted.

6

The Director of Public Prosecutions was given special leave to appeal to the Privy Council in order to contest the conclusion that the rule that a corroboration direction and warning must be given should still be regarded as part of the law of Grenada. Mr Dingemans for the Director submitted that the judgment in Pivotte was wrong and should be over-ruled and, alternatively, that section 167 of the Evidence Act of Grenada had the effect of requiring the English law to be followed. Section 167 reads:

"Unless this Act otherwise provides, any question which shall arise in any action, suit, information, or other proceeding whatsoever in or before any Court of Justice, or before any person having by law authority to hear, receive and examine evidence touching the admissibility or sufficiency of any evidence, or the swearing of a witness or the form of oath or of affirmation to be used by any witness or the admissibility of any question put to any witness, or the admissibility or sufficiency of any document, writing, matter, or thing tendered in evidence, shall be decided according to the law of England for the time being in force."

This had the result, it was submitted, that both the decision in Chance and section 32(1) of the English Criminal Justice and Public Order Act 1994 abrogating the requirement, inter alia, in respect of trials where the offence charged is a sexual offence were also part of the law of Grenada and applicable to the present case.

7

The defendant has not sought to be represented on this appeal and has not instructed counsel. Their Lordships accordingly requested the assistance of an amicus curiae and are grateful to Mr Evans for the assistance he has...

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