Mettyear J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0022/2011 THE QUEEN V TYRONE ROSWELL EBANKS Appearances: Ms. Elisabeth Lees on behalf of the DPP for the Crown Mr. Ben Tonner of Samson and McGrath for the Defendant Before: Justice Michael Mettyear (Actg.) Heard: 10th -13th September 2012 Preamble This Judgment is distributed with the strict understanding that, in any report of it, the anonymity of the Complainant, who is also the victim, must be strictly preserved, that is, the victim may not be identified by name or location or by her family members. JUDGMENT INTRODUCTION
The Defendant stood trial on two counts that arose out of the same incident.
On Count 1, the Defendant is charged with Rape contrary to s.127 of the Penal Code Law (2010 Revision). The particulars of the offence are that Tyrone Roswell Ebanks, on the 27th day of December 2010, at 17b Powell Smith Road, West Bay, Grand Cayman had unlawful sexual intercourse with Paris Ebanks without her consent.
On Count 2, the Defendant is charged with Defilement, contrary to s.134 of the Penal Code Law (2010 Revision). The particulars of the offence are that Tyrone Roswell Ebanks, on the 27th day of December 2010, at 17b Powell Smith Road, West Bay, Grand Cayman had unlawful and carnal knowledge of Paris Ebanks, a girl between the age of twelve and sixteen years.
The counts are alternatives.
I have considered the legal definitions of both counts. It is unnecessary in this judgment to set out those definitions, as it is common ground that the resolution of the case depends on findings of fact on the disputed issues rather than on any legal analysis.
The Complainant, Paris Ebanks – hereinafter referred to as Paris, or, the Complainant – who is not related to the Defendant, was born on the 1st December 1996. She was therefore 14 years old at the date of the alleged incident.
If it is proved that the Defendant had sexual intercourse with Paris on the 27th December 2010 then he must be guilty of one or other of these counts. He would be guilty on Count 1 if it is proved that Paris Ebanks did not consent to sexual intercourse. He would be guilty to count 2 if that is not proved.
This is a judge alone trial. In conducting it and composing this judgment I have gratefully followed the legal analysis of Quin J. in R v. George Dexter Evans Indictment No 18 of 2011 paragraphs 67 to 71. "The Defendant elected to be tried by a Judge Alone, rather than a Judge and Jury, pursuant to s.129 of the Criminal Procedure Code of the Cayman Islands. Our Court of Appeal first dealt with the duties of a Judge in Judge Alone trials in its judgment in K. Richards v. R 2001 CILR 496 when Justice Rowe stated: "When a trial judge sitting alone has advised himself to the applicable principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge’s mind upon the matter should be clearly revealed." In R. v. Dave Kennedy Whittaker Cr. App. R. No. 14 of 2006, the Court of Appeal gave some guidelines regarding the duties of a Judge in Judge Alone trials. In the Judgment of Mottley J.A. he adopted the Judgment of the former Lord Chief Justice of Northern Ireland Lord Lowry in R v. Thompson [1977] NI 74 in which he stated at page 83: "While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give a full and balanced picture of the facts for decision by others. His task is to reach conclusions and to give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an Appeal, it may be seen how his view of the law informed his approach to the facts." More recently our Court of Appeal in Randy Martin v. R Crim. App. R. 2 of 2010 delivered their reasons for dismissing the Appeal on the 7th December 2010. Mottley J.A. again adopting R v. Thompson [1977] NI 24 also adopted R v. Thain [1985] NI 457 where Lowry LCJ said at page 478: "Where the trial is conducted and the factual conclusions are reached by the same person, one need not expect every step in the reasoning to be spelled out expressly, nor is the reasoning carried out in sealed compartments with no inter-communication or overlapping, even if the need to arrange a judgment in a logical order may give that impression. It can safely be inferred that, when deliberating on a question of fact with many aspects, even more certainly than when tackling a series of connected legal points, a judge who is himself the tribunal of fact will (a) recognize the issues and (b) view in its entirety a case where one issue is interwoven with another." Following Lowry LCJ in R v. Thompson and R v. Thain, Mottley J.A. said in Randy Martin v. R at paragraph 31: “From these cases the following guidance may be discerned. A judge sitting in a criminal case without a jury, in rendering his decision and giving his reasons for so concluding, is not required to review every fact and to detail each argument on which the prosecution and defence rely as if he were summing up to a jury. The judge must set out the conclusion reached and make clear the reasons for arriving at that conclusion. He is required to have regard to any difficult or unusual points of law and to show how those points of law have in anyway impacted the conclusion that he has reached.” THE COMPLAINANT’S EVIDENCE
The prosecution case primarily relies on the evidence of the Complainant.
I exercised my discretion to allow her to give evidence behind screens. The application to allow her to give evidence in that way was not opposed by the Defendant.
I remind myself that she is allowed to give evidence in that way so that she is at her ease in giving evidence. The fact that she gave evidence behind screens is not to be held against the Defendant. It neither enhances nor detracts from the evidence she gave.
The Complainant’s evidence was that on the 27th December 2010 she was at the home she was living in at 25 John Bush Road. Her grandmother with whom she resides is Katherine Blackburn. The Complainant left the house to visit her great grandmother, Grace Ebanks, who lived on Powell Smith Drive. The Complainant was unsure of timings, but indicated that this was happening late afternoon.
After spending a short time at Grace Ebanks’s, the Complainant got on her bicycle intending to go back home. She later indicated to police the route she took and this is marked on exhibit 2.
She came to a point where she saw the Defendant outside his home. His address was 17b Powell Smith Drive, West Bay. She knew him because her mother had in the past rented the property from him. The Complainant said that she had not seen the Defendant for a couple of months. I take her account of the vital part of her evidence from my note of what she said. It is not, of course, verbatim.
The Complainant said: "I saw Tyrone. He was on my right. I knew where he lived. He was near his house – about 15 feet from it. We were about 15 feet apart.... ... he said 'come here' ... I said 'no'. I keep riding. He grabbed me by my collar. I was wearing a pink polo shirt and short jeans. He grabbed me off the bicycle – it fell. I started to fight him off [and] started punching him. He just kept holding on to my collar. I punched his chest and face but I didn’t make contact. I couldn’t handle him. He was dragging me towards his house. He was still holding my collar." She said: "He got me to his house. He pushed me inside. When we got in he locked the door. ....He pushed me through the next door to a bedroom. I said 'leave me alone.' He said nothing. ... I felt bad. ... I was upset. I started fighting him to get to the door. He blocked me. ....He pushed me into the room and pushed me onto the bed. I got up and he pushed me again. I was on my back. He slide off my pants... He pulled off my jeans and underwear. I tried to pull them back up but I couldn’t. He pushed me back." The Complainant said that by this time her pants were "completely off." She said: "I told him to leave me alone. He said nothing. He held me down by my arms and used his other hand to unbuckle his jeans. He took off his jeans and boxers. He came over on top of me. I was on my back. He inserted his private part into my vagina..... his penis. It felt nasty. I tried to fight him off and I cried." The Complainant said the Defendant said "something" and, "not to tell anyone." The Complainant continued: "He was inside me for about half hour with his penis. He was moving up and down. Then he came out of me. He picked up a knife from the side of the bed on the floor..... a blue handled knife with a blade of six inches or so. He held it to my throat and said I mustn’t say anything to anyone. I was scared." She said the Defendant did not wear a condom. She said the Defendant went to the bathroom after he got up off her and it was then that she tried to leave. "I took my chance. I put on his blue sports shorts from the ground and I grabbed my stuff. It was quicker to put his shorts on than to get mine on. I got on my bike and rode home crying. I had to unlock the bedroom to get out. I had to unlock the front door as well. I picked up my bike from the side of the road." Paris described the sheets on the bed as white with a floral pattern.
The Complainant said that when she reached home: "I flung down my bike and went in crying. Natalia came in and asked what had happened and I said 'Tyrone raped me'. She told my mum. Grandma came in and asked me....I went with her to the police."
In cross examination the Complainant said that the jeans she was wearing came about 2 inches below her knee. The exhibited jeans seem much longer. In hindsight it is unfortunate that the exhibited jeans were not shown to Paris to see if she identified them.
In the absence of an identification there is force in the submission of Mr. Tonner that there is a question mark over whether these were in fact what she was wearing.
She said on a number of occasions that she could only recall the Defendant holding and dragging her to the house by the collar. This was contrary to what she said in her first statement to the police and was not said in any subsequent statement.
She accepted that she rode home after being at the Defendant’s home as fast as she could and that she was wearing the Defendant’s shorts without underwear.
Paris accepted that she had no injuries as a result of what happened. She told Mr. Tonner that she had never had sexual intercourse before that day. She repeated that the intercourse lasted about 30 minutes.
Quite properly Mr. Tonner put the detail of the Defendant's case and Paris denied it with vigour and I accept Ms. Lees’s submission, with an air of incredulity. EVIDENCE OF 'RECENT COMPLAINT'
The Crown also relied on evidence of recent complaint. I remind myself that such evidence is not independent supporting evidence of the truth of what is said. It may show consistency and proximity to the alleged act which may diminish the opportunity for fabrication.
Evidence of complaint was given in court by Natalia Ebanks and, in statements that were read from Katherine Blackburn, and those investigating the allegation.
Natalia Ebanks’s evidence, in summary was that sometime after 17:30 on the 27th December 2010 she saw the Complainant on a bicycle on her way to Grace Ebanks’s home. Natalia Ebanks said that Paris was wearing "...a light pink polo shirt dark blue jeans three quarter pants and my brown and green slippers". Natalia Ebanks went on to say that about 18:25 she saw Paris again - at Katherine Blackburn's house - riding the same bicycle with "...her Jeans pants that she had on in her hand, then she had blue football shorts on..." Natalia Ebanks spoke of Paris storming into the house. The witness followed Paris and found her at the kitchen sink crying. When asked what had happened Paris had said: "Tyrone raped me". Natalia Ebanks gave further details saying the Paris told that she was "... riding pass and he jock (pulled) me off the bicycle dragged me in his house had sex with me". The witness said that's when she asked the Complainant where she got the blue football shorts from, and Paris told her she had to "...grab the blue football shorts, put it on and ran out".
In cross-examination Natalia Ebanks was asked a number of questions about her timings. For reasons that will become apparent later in this judgment she cannot have been accurate on those timings.
Katherine Blackburn's statement adds little, but she confirmed that the Complainant arrived home with "...jeans pants bundled in her hand" and that the Complainant was crying. The witness said that the Complainant told her; "Tyrone just raped me and held me down with a knife to my throat."
Ms. Blackburn took the Complainant to the police station. EXPERT EVIDENCE
I heard from two expert witnesses. I have directed myself in the normal way concerning the approach to be taken by a fact finder to expert evidence – in particular that I am not bound to accept such evidence and that, in any event, it is important not to give undue weight to it. Rather it should be seen as part of the overall evidence in the case.
The first such witness was Dr. Gilbertha Alexander. She was accepted by the Defence to be an expert witness.
Dr. Alexander examined the Complainant, on the 27th December 2010. From the defence point of view the important part of Dr. Alexander’s evidence was that she found no injuries either to the genitalia or to any other part of her body. Nor did she see any blood.
To the Crown the most significant parts of her evidence were the conclusions that the hymen was not intact, that a milky discharge was noted in the vagina, and, the detail of the swab and smear-taking exercise in which she was engaged.
So far as the milky substance was concerned, the doctor agreed in cross-examination that this did not necessarily indicate semen and it might be explained by normal vaginal discharge.
Dr. Alexander gave detailed evidence concerning the procedure she followed in obtaining vaginal swabs. She used an appropriate evidence kit. The vaginal swabs were taken from the high vagina, the proximal end, through the speculum that she was using to view the inside of the vagina. She did this to avoid any risk of contamination from material that might have been external to the vagina or at the lower end. She made it clear that she was aware of the risk of contamination if the procedure was not properly performed and that she acted accordingly.
In cross-examination she said she was satisfied that there was no risk of the swab having touched the lower area of the vagina.
Having taken the high vaginal swabs she produced a smear. The swabs and smear were placed in an exhibit envelope, sealed and sent for examination via the police. No issue on transmission arises. These were collectively identified as G.A.1.
The items obtained were examined by the next expert in the case, Tiffany Roy, and her colleagues at DNA Labs International in Florida, U.S.A. Tiffany Roy is an expert in the collection and examination of D.N.A. Her curriculum vitae were placed before me.
Besides the items referred to above, Tiffany Roy was sent other exhibits which were not examined or which produced no positive results. She was also sent samples of blood from the Defendant and from the Complainant. These were to be analysed to obtain their DNA profiles. She confirmed that their profiles were obtained.
The vaginal smear within G.A.1 was examined and spermatozoa were observed.
Vaginal swabs given the unique number 11-02115.01.03, within G.A.1 were examined and seminal fluid was indicated.
The laboratory, as best it could, separated sperm cells from other cellular material and the sperm cells were examined. The foreign male DNA profile obtained matched the DNA profile obtained from the Defendant.
Tiffany Roy used the F.B.I. database to formulate her statistical comment. Having taken into consideration the special circumstances of the mix of population in the Cayman Islands, she concluded that "The chance that an unrelated person, chosen at random from the general population, matches this DNA profile is approximately 1 in every 600 million individuals". That, she said, was the most conservative estimate.
In cross-examination Mr. Tonner asked about the Defendant’s blue shorts: Question: "If there was seminal fluid on the shorts and Miss Ebanks put the shorts on with no underwear, it is possible that the DNA from the fluid could have transferred onto her body?" Answer: "Onto her body, that's possible. Question: "If there was seminal fluid in the crotch area of those shorts, it is possible that that fluid may have transferred to her vaginal area? In other words it's...." Answer: "That's correct." The emphasis on the word fluid has been added by me.
With respect to Mr. Tonner, such general questioning is unhelpful. There is no evidence that the shorts had any seminal fluid on them. The Defendant said that he had no reason to think that there was any fresh semen on the shorts on the 27th December 2010. The furthest he went was to state that there was a possibility that semen was deposited on the shorts the day before. If that were the case, then one imagines that it would have dried onto the shorts by the 27th.
The full particulars of the case to be advanced by the Defendant should have been put to Ms. Roy and her comments on those particulars sought.
Transfer and contamination of DNA is a notoriously complicated area and very fact-specific, see for example, the comments of Lord Wolff L.C.J at paragraph 130 of R v. Hanratty (2002) 2 Cr. App. R. 30.
One has no idea of what Ms. Roy would have said, had the matter been fully put to her.
Faced with such generalization and without, I presume, knowing the detail of what was going to be advanced about the shorts on the Defendant’s behalf, Ms. Lees could only deal with the issue generally in re-examination. She asked, Question: "We’ve heard from the doctor who took these swabs that these swabs were taken from the high vaginal area. The reason she was able to say this, is because a speculum was used. How does that affect the fact that the swabs were taken from the high vaginal area, your answer in relation to the possibility of transfer from the blue shorts?" Answer: "I would not expect any material from the shorts to transfer to the interior of the vagina."
Although, as I have said already, it is not possible to know what Ms. Roy would have said had the matter been dealt with appropriately, in my judgment, one can safely assume that her answers would not have been any more beneficial to the Defendant’s case than those referred to already. It might well have been that they would have been worse for him, but that is not an assumption that I will make. REMAINING EVIDENCE
The remaining evidence for the crown can be dealt with very shortly.
Evidence was read from P.C. Parkinson that Katherine Blackburn and Paris arrived at West Bay police station and complained of the rape at 1800 on the 27th day of December 2010. This time fits in with timings given by other police officers as to when they were informed of the allegation. I therefore accept that this was about the time that the complaint was received by the police. As a consequence it must follow that the timings given by Natalia Ebanks cannot be relied on.
P.C. Parkinson noted that the Complainant was in tears. She saw no scratches or bruises on the Complainant.
At 18:10 P.C.s Bogle and Bent attended at the Defendant’s property at 17b Powell Smith Road. There appeared to be nobody at home, but the officers heard a washing machine running. The officers then went along the road to number 35 Powell Smith Road where they saw and arrested the Defendant. On being cautioned the Defendant said: "This is a mistake I did nothing". The Defendant was asked if he had any objection to his house being searched and he said "No".
At 20:20, after the Defendant had been booked in at the police station, he was taken to his home address where, after a short delay, the police went in. D.C. Turner noticed that there was hardly any bedding on the bed. He was informed by the Defendant that, "...he had been washing it when Paris came round to his house". Bedding was recovered from the washing machine. It has been exhibited. It is white with a floral pattern.
At various stages the Defendant made unsolicited comments to one police officer or another. Prosecution counsel has invited me to note subtle differences between what was said at different times. She submits that they show inconsistencies in the Defendant’s account which indicate a developing defence as the case went on, rather than a genuine recital of facts.
I have carefully considered this submission and although there clearly are differences in his story, I have concluded that it is fairer to accept the submission of Defence counsel that, in its essentials, the accounts given by the Defendant follow a broadly consistent theme and this is not the sort of Defendant where total consistency should be expected. In such circumstances it is unnecessary to engage in a detailed recital of all he said. It is sufficient to say that he vigorously denied that he had any sexual contact with the Complainant.
The Defendant was interviewed on two occasions. The first was on the 29th December 2010. From the start he indicated to the police that he wanted a legal representative to be present, that none was present and that he had been advised not to answer questions until one was. He was asked a number of questions, but throughout he declined to give answers.
The second interview was held the following day. Again he made it clear that as no legal representative was present he did not intend to answer questions. He said that in taking that stance he was following legal advice. He did, nevertheless, as the interview progressed, give answers and made assertions about the allegation.
Insofar as the Defendant did not give an account of matters which he has later relied on in Court, the Crown has declined to invite me to draw any adverse inference. In the circumstances, I entirely agree with their stance and will not draw any such inference.
So far as the detail of what the Defendant said is concerned, it is unnecessary to set it out. Again I accept the submission of defence counsel that it broadly reflects what he said in Court and I will set that out in its essential detail a little later.
The rest of the Crown’s evidence consisted of admissions, a plan, a drawing by the Complainant and some photographs. I was also shown defence photographs, Exhibit D.1, of the Defendant’s house, drive and garden. I have considered all these items.
The Defendant gave evidence. I set out a summary of the relevant parts from my note book. Again it is not verbatim.
The Defendant said: "I did not have sex with Paris on the 27th December 2010...After 5 p.m. I was at home at 17b Powell Smith Drive. I was cooking and cleaning. I was cleaning work clothes and bedding. I don’t smoke inside, so I went out to the edge of the road to smoke. ...It is 118 feet from my home to the road." The Defendant explained that the windows of his house were: "...not boarded up." Paris said that the rear window was boarded. He said: "I saw Paris Ebanks ride up on a bicycle. She asked if she could use my cell phone. I had it in my hand. I said, go ahead, but don’t kill my credit. .... I knew her." The Defendant said he had once given the Complainant’s mother and her boyfriend his home at 17b Powell Smith Drive to use. He said, "They were there a year. They left seven months before the incident.... Paris lived with them. After they left I saw Paris every two or three days on Powell Smith Drive." Concerning the day in question the Defendant said: "I gave her the phone and she spoke for three to five minutes. I took the phone back. She walked to my home to give it to me. I did a credit check; it was a pay as you go. This is the same phone I mentioned to the police. At my front door she asked me for water." The Defendant described the surface of the road as "...chip and spray" He said: "I gave her a bottle of water from the fridge. She was by my front door – on the threshold. She said, let me use the bathroom, and I said go ahead. The bathroom is through the living and bedroom. She went into the bathroom. I was at the stove cooking chicken." The Defendant then said: "She returned and had my shorts on – they are blue with gray inside. I think she had black tights on when she went in, with a polo top. I said, why my shorts on and she replied that she had messed herself up and she was wet or cold and she had wet tights so she asked me for a bag to put item in. I am not sure exactly what she said." The Defendant said: "The shorts were in the bathroom. I'd just used them the day before." The Defendant said he then turned off the stove and the Complainant said she was going to get something to eat at Subway.
The Defendant said that before the Complainant left his home on the day in question she asked for money and: "I gave her some – not sure how much, maybe 15 dollars. She then left. I stayed at home for another 20 minutes."
The Defendant, referring to the Complainant said: "I never dragged her off her bike. I had no sexual contact. I locked no doors – all were open. I didn’t threaten her with a knife."
Asked again about the bedding the Defendant said: "When she came to the house I was cooking and cleaning. The bedding was on the couch or on the floor by the front door. The shorts were in the bathroom somewhere."
Towards the end of his evidence in chief the Defendant was invited to say whether he knew of any reason why Paris might make up such an allegation against him. Defence counsel advised him to avoid speculation. The Defendant gave an account of a dispute involving himself and two other men, but its connection to the Complainant was tenuous in the extreme. The only other reason he could give was that he was on bad terms with the Complainant’s mother. It is not, of course, for the Defendant to prove why a Complainant might give a false account.
In cross-examination the Defendant said he saw no mess on the Complainant or her clothing. He denied that she had been wearing the jeans produced in Court (which did not appear to be messed in any way). He said that he had no reason to think that there would be fresh semen on his shorts on the 27th December, but added that he had been with his girlfriend the day before. He said, without elaboration, that semen could have been deposited on them then.
I should add that, at the conclusion of his evidence, the Defendant invited me to attend at the property to see it for myself. It was an invitation I refused as I concluded that there was no possibility that I would learn anything new from such a visit, particularly as evidence had been given that the house had been destroyed since the end of 2010. CONCLUSION
I begin by reminding myself that the Crown must prove their case against the Defendant and that the standard of proof is to make me sure of guilt.
Paris Ebanks gave an account in court of the incident on the 27th December 2010 which amounts to the offence of rape being committed against her by the Defendant. Her account was given in a measured and believable way. She was not shaken from her story despite a thorough and able cross-examination by Mr. Tonner.
Her evidence was criticised in a number of ways.
Firstly, it was pointed out that her estimate of the distance between where she was confronted by the Defendant and his house, namely about 15 feet, was wildly wrong. This I accept, but in my judgment it has no relevance. There could be no advantage to her in deliberately misstating the distance. The fact is that on either account she was on the street with the Defendant outside his house. The distance between them and the house is of no moment. The underestimation simple shows that she is one of those people who are not good at making such estimations.
Secondly, she was criticised for saying, for the first time, in court that she was dragged by her collar, rather than by her arm as she had said before. I accept that this is an inconsistency. However, one cannot necessarily expect total consistency from witnesses, particularly a young witness describing traumatic events occurring nearly two years ago. Nevertheless it is appropriate for me to put this inconsistency into the balance in the Defendant’s favour. It is also suggested that, in saying that the sexual intercourse lasted 30 minutes, she was being inconsistent with her statement of the 29th December when she said: "He then inserted his private part into mines (my vagina). I was screaming and calling out his name saying 'Tyrone leave me alone' and he told me to shut up. He was still in me moving up and down and he pulled out of me like about five minutes after." The statement is not as clear as it might be, but I accept that there is the possibility of an inconsistency. I am not, however, persuaded that, in the circumstances, it is of any great significance.
The Defence submit that if the account given by Paris were true, one would expect to see some injury, or at least some mark, on her body supporting what she said. Mr Tonner refers to the photographs D1 and submits that they show that the ground over which Paris claims to have been dragged is hard and somewhat rough in parts. This, he claims, makes it more likely that some injury or mark would have been caused. In fact, it is reasonably commonplace that relatively violent attacks leave surprisingly little injury and that sometimes minor attacks have devastating consequences (for instance "one-punch manslaughters"). Nevertheless, this is a perfectly proper submission to make and I accept that one would reasonably have expected to see some sign of the trauma she alleged. Again, I put this into the balance in the Defendant’s favour.
The evidence of recent complaint is helpful in deciding the case. Although timings are not clear, it is obvious that it was not long between Paris leaving the Defendant's property and getting home and making the first complaint. I accept that between then and the end of her evidence Paris has, subject to matters stated above, given a broadly consistent account of the rape. To have made up a false account so quickly after being with the Defendant would have required a degree of guile which she did not appear to possess.
The strongest evidence against the Defendant comes from the medical and scientific experts. There is no proper basis for doubting the evidence of Dr. Alexander that she carefully and properly obtained the high vaginal swabs. There is no proper basis for doubting that the analysis of the swabs found the Defendant's DNA in semen on two of the swabs. The obvious conclusion is that the semen was deposited by ejaculation of the semen into the vagina during sexual intercourse. Despite Mr. Tonner’s efforts on the Defendant’s behalf when cross examining Ms. Roy, I am left in no doubt that no other sensible explanation exists.
The Defendant gave his evidence in a calm and polite way, but faced with the weight of evidence against him, his account was entirely implausible. This is my general conclusion, but I will deal with two specific matters as they featured prominently in counsel's submissions.
Firstly, I reject the Defendant’s account about the circumstances leading to Paris wearing his sports shorts. Having seen this girl give evidence it is to me inconceivable that she would have the wit to add to a false claim of rape a false story that, in her desperation to escape her attacker, she grabbed his looser clothing and put it on rather than struggle with her tighter garments which would have slowed her down. It was clearly a true account. His account, on the other hand, was not credible. There was no evidence that she had messed herself, even from the Defendant himself, and no reason why she would falsely claim to have done so. Even if there were his day-old semen on the shorts there is no reason for her to have known. The only sensible reason why she took them, and put them on, is the reason she gave.
Secondly, I reject the Defendant’s account regarding the sheets. I cannot accept that Paris saw the sheets in the house somewhere other than on the bed and then made up the story that they had been on the bed. Nor do I accept the assertion that coincidentally the Defendant had chosen that afternoon to wash his sheets. The truth in my judgment is that which the Crown allege, namely, that the Defendant, realising what he had done might have left evidence, set about destroying that evidence by washing the sheets. The point taken by Mr. Tonner that if that were his motive he could have gone further by washing the under sheet does not detract from that conclusion.
The result of these findings leads me to the sure conclusion that sexual intercourse took place between these two people. In truth, the evidence is overwhelming.
The points against such a conclusion raised by Mr. Tonner, which I have taken into consideration in the Defendant’s favour, do not cause me to doubt the conclusion I have reached.
Having concluded that sexual intercourse did take place between these two, there remains the question of consent. Here the evidence is all one way.
The evidence from Paris is that she verbally and physically resisted until a point came when she realised that further physical resistance was pointless.
I accept Mr. Tonner's submission that it would be possible to accept the evidence of the Complainant on one point - sexual intercourse having occurred - and yet reject it on the question of consent. However there would have to be some justifiable reason for doing so. Here there is none.
Without hesitation I am sure that the sexual intercourse was without her consent. In such circumstances the Defendant is guilty of the offence of rape and I so find. Dated this the 20th September 2012 Mr. Justice Michael Mettyear (Actg.) Judge of the Grand Court