Jobe v The Queen

• Jurisdiction: St Vincent and the Grenadines
• Judge: Saunders, C.J.,Alleyne, J.A.,Redhead, J.A.
• Judgment Date: 20 September 2004
• Neutral Citation: VC 2004 CA 16
• Court: Court of Appeal (Saint Vincent)
• Date: 20 September 2004
• Docket Number: Criminal Appeal No. 23 of 2003

Court of Appeal

Saunders, C.J. (Ag.); Alleyne, J.A.; Redhead, J.A. (Ag.)

Criminal Appeal No. 23 of 2003

Jobe

and

The Queen

Appearances:

Mr. Ronald Marks for the appellant.

Mr. Colin Williams, DPP [Ag.] with Ms. Sandra Robertson for the respondent.

Criminal practice and procedure - Trial by jury — Jury Act, Cap. 21, s.13 stating that verdict of jury should be unanimous — Jury considered their verdict for less than two hours — This fact fatal for the conviction — Recommendation by court that the provisions of the 1970 English Direction that any verdict of a majority should not be accepted until two hours and ten minutes had elapsed be adopted.

Criminal law - Incest — Appeal against conviction and sentence to 8 years — Alleged complaint not proven by the person to whom it was supposedly made — Appeal allowed.

1 Saunders, C.J. (AG.): David Jobe was charged with three counts of incest. By a majority verdict, seven to two, he was convicted on two of the counts. He was acquitted of the remaining one because the jurors were split, six to three, on that count Jobe was sentenced to a term of imprisonment of eight years. He has appealed both his conviction and his sentence.

2 The only evidence of the prosecution was the uncorroborated testimony of the victim. She testified that she had been brought up in a succession of households of various aunts. She had last seen her mother in 1997 just before the latter had returned to the United States. In about December, 2001 she was living with her father, the accused, at Glenside. She said that she slept in her father's bedroom there and that her father normally slept in the sitting room. She described a rape by her father during which she said she was crying. She said he told her not to make any noise or else he would kill her. She said he slapped her, had sexual intercourse with her and then went back outside on the chair. Throughout her ordeal, according to her, her father's mother, his sister and her three cousins were all in the same home.

3 The victim further testified that some time in January, 2002 during a school week, again while her grandmother, aunt and cousins were in the house watching television, her father again had sex with her. She said that on this second occasion, he threatened her with something like a fish bone which he held to her throat. He also slapped her in her face, tied something that looked like cable wire around her neck and hit her with a broom stick.

4 Some time after these two incidents, the victim moved to a two bedroom house at Diamonds with her father. Her father's girlfriend also lived in that house. The victim stated that at this house, she normally would sleep in the sitting room. One night, she said, her father and his girlfriend were fighting. Her father later called her into his bedroom and once more had sex with her. She said that he slapped her and that he again held the fishbone to her throat. She said that her father's girlfriend in the other room, aware of what had happened, confronted her father, asking him if she – the girlfriend – was not enough.

5 The victim said that on all three occasions she reported the incidents to her teacher and that the teacher had a Social Welfare Officer visit her. The victim later reported the matter to the Mesopotamia Police as “they were not doing anything”. The police then charged the accused with the three counts of incest.

6 The teacher to whom the alleged reports were made gave evidence. She confirmed that she was indeed the victim's teacher during the 2001-2002 school year. She recalled having a conversation with the victim in the latter part of February, 2002 in relation to the late payment of school fees. She said the victim explained to her “that her father said if she did not have sex with him — no school fees”. She denied that the victim had ever reported any incident of sexual intercourse.

7 That was the essence of the evidence of the prosecution. The accused gave evidence on oath. He denied the accusation and stated that his daughter was lying on him because he was strict with her and he disapproved of a relationship she had with a certain young man. He spoke of an incident when, he said, his daughter, then 15 years old, was missing from the house at 1:00 a.m. He said he went outside and saw her return home at about 2:00 a.m. accompanied by a young man. He also claimed that when she was 14 years old, she had reported that a boyfriend of one of her aunts had had sex with her. The victim herself had testified that the aunt's boyfriend had attempted to have sex with her. The accused said that he didn't pay his daughter's school fees because these were paid for by her mother in the USA The evidence of the accused was supported by his mother and by his girlfriend.

8 In summing up to the jury the trial judge addressed the issue of recent complaint. The judge directed the jury along the following lines:

• “Then there is also the issue of recent complaint. The virtual complainant tells us that she reported to her teacher each time the father interfered with her. She mentioned the name of the teacher as Mrs. Dowers. Mrs. Dowers gave evidence here. She said sometime in February she approached the virtual complainant and asked her about late payment of school fees. The virtual complainant told her, “My father says he would only pay her school fees if I have sex with him.” She said this was sometime in February 2002. Nothing was said to her after the 18th December and nothing was said to her after the third act at sexual intercourse at Diamonds, i.e. between 31st May and 1st July. She never received any such report. This is what you call the evidence of a recent complaint

• You see in sexual offence cases there is usually what is called the evidence of recent complaint where soon after the act or soon after the offence is committed the victim complains to somebody in a position of trust or somebody close to her, immediately after or reasonably after the act she complains. That complaint does not necessarily go towards to the truth of what the virtual complainant it goes towards the consistency of her story so that if the virtual complainant made a complaint to somebody in this case for instance, it does not necessarily mean that what she is saying is true, but that evidence taken together with other evidence can go towards showing the consistency of her story which can assist you having considered all the evidence in deciding whether to believe her or not I hope you get what I am saying so that the absence of a recent complaint does not necessarily mean that what she is saying to us here in this trial did not happen. The absence of it does not mean it did not happen because the presence of a recent complaint only goes towards consistency.

• But the absence of it also should pose certain questions in your minds. How come she did not report to anybody? She said she told her teacher. The teacher said all she said was in connection with school fees and her father wanting sex with her before he paid her school...