Smith J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN IN GEORGE TOWN, GRAND CAYMAN IND. NO. 25 OF 2003 - Criminal REGINA - VS - KENNY WHITTAKER REASONS FOR SENTENCE delivered by THE HONOURABLE JUSTICE SMITH on the 20th day of February 2004, at George Town, Grand Cayman. APPEARANCES: For the CROWN: Mr. S. Wilson For the defendant: Mr. L. Aiolfi REASONS FOR JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REASONS FOR JUDGMENT The accused, Kenny Roger Whittaker, is charged on indictment containing two counts. The first charges him with rape, contrary to Section 125 of the Penal Code (1995 Revision). And the particulars of that offence are that he, Kenny Roger Whittaker, on the 12th day of October 2002, at East End, Grand Cayman, had carnal knowledge of Alicia Watkins without her consent. The second count charges him with indecent assault, contrary to Section 130(1) of the Penal Code (1995 Revision). And the particulars of that offence are that he, Kenny Roger Whittaker, on the same day, that is the 12th day of October 2002, at East End, Grand Cayman, unlawfully and indecently assaulted Alicia Watkins. The accused person has pleaded not guilty to this indictment and, as in all criminal cases, the burden is on the prosecution to adduce evidence to satisfy the Court so that the Court is sure of his guilt before the REASONS FOR JUDGEMENT 1 Court may return a verdict adverse to him. 2 This burden never shifts. So even though the accused person gave evidence, he was not assuming any burden to prove his innocence. 5 It is for the prosecution to satisfy me, so that I am sure of his guilt, before I can, by my verdict, find him guilty. 6 that I am sure of his guilt, before I can, by 7 my verdict, find him guilty. 8 9 Now, rape, if I might define it thus, a man commits rape if he has sexual intercourse with a woman who, at the time of the intercourse, does not consent to it. And also that, at the time he knows that the woman does not consent to the intercourse or is reckless as to whether she consents or not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 10 commits rape if he has sexual intercourse 11 with a woman who, at the time of the intercourse, does not consent to it. And also that, at the time he knows that the woman does not consent to the intercourse or is reckless as to whether she consents or not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 12 intercourse, does not consent to it. And also that, at the time he knows that the woman does not consent to the intercourse or is reckless as to whether she consents or not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 13 also that, at the time he knows that the woman does not consent to the intercourse or is reckless as to whether she consents or not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 14 woman does not consent to the intercourse or is reckless as to whether she consents or not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 15 is reckless as to whether she consents or not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 16 not. And as regards the second count – well, I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 17 I need not define indecent assault. Judge alone, I don’t think I have to go there. If it were a jury, perhaps I would. 18 alone, I don’t think I have to go there. If it were a jury, perhaps I would. 19 it were a jury, perhaps I would. 20 21 I must remind myself that in sexual cases it is always the case that the judge looks for corroboration, and the Court is aware of the need for caution in dealing with sexual cases, and I therefore remind myself that it REASONS FOR JUDGMENT 1 is dangerous to convict in reliance on the uncorroborated evidence of a complainant — or of the complainant, in this case Alicia Watkins. However, I also remind myself that even if there is no corroboration, if, however, I am convinced that Alicia speaks the truth, then, in spite of the lack of corroboration, I may convict in reliance on her evidence. I must also remind myself that recent complaint does not constitute corroboration, because corroboration, of course, is some independent evidence which supports the evidence of Alicia in some material particular, not only that the offence of rape was committed, but that it was the accused person who committed it. And in this case where the issue of consent is raised, it is important that I remember here that recent complaint is not and does not constitute corroboration. 20 I think it was the witness Charron Whitaker who gave evidence as to recent complaint. 21 And let me just state the law here that that evidence is relevant, not merely as REASONS FOR JUDGEMENT 1 negativting consent, but also as being 2 consistent with the sworn evidence of the 3 complainant. So that is what I have to look 4 at in particular. There is also evidence 5 from Mr. Whitaker, Charoon Whitaker, as to 6 the distress of Alicia, since she was crying 7 and seemed upset, but I will not attach any 8 weight to the evidence of distress by itself. 9 I will look at it as part and parcel of the 10 recent complaint. So looking at the recent 11 complaint, I will consider his evidence that 12 she was crying and that she was upset and his 13 description of the little, I think mark, or 14 whatever he described it as, that he saw 15 under her chin. Let's see if there is any 16 other aspect of the Law that I should mention 17 at this stage. I will come back to 18 corroboration when dealing with the 19 subnission of Crown counsel that the Lies, 20 if the Court should find that there were 21 Lies -- and in fact I think the accused 22 person admitted that he had Lied -- to see 23 whether those Lies may constitute 24 corroboration, but we will get to that anon. 25 REASONS FOR JUDGMENT 1 I will look through briefly the evidence on which the prosecution relies and also, of course, the evidence given by the accused person in his own behalf. 2 which the prosecution relies and also, of course, the evidence given by the accused 3 Alicia Watkins, now 16 years of age, but at the time she was under 16, and that is not in dispute. She testified that in October 2002, whilst her mother, Mrs. Edith Isabella Phillips, was off the island, she went to the wedding of the accused person's brother at the East End Civic Centre. She told us that she was with her cousin Elena, who she said was like a sister to her. She told the Court that she had known the accused person for about three years and that the accused person's girlfriend, Nelasa Connelly, was her best friend. She told us that at the reception she saw the accused, Kenny, and that he called her, asked her to take food to his girlfriend Nelasa. She agreed to do so, but inquired why he did not do that himself, and he told her that he and Nelasa were not talking. She went on to say that whilst at REASONS FOR JUDGMENT 1 the reception -- I think at this stage she said Kenny was holding a baby -- and asked her to pick up something that had dropped to the bottom of his pants -- she said pants' leg. She did so and the object she picked up felt like a knife, because she could have felt the wooden part and also the metallic part, but she told the Court she did not look at it. She held it behind her, and of course sometime after when Kenny stood beside her she passed the knife to him. 11 12 she told us that at the end of the reception, when the reception was over, Elena asked a friend, one Junior Smith, to take them to the Eastern Bar. Others were in the car with herself and, of course, the driver. I think she mentioned Jeff and some other persons. And on the way they picked up Kenny, that is the accused person, and they all drove to the bar, the Eastern Bar. 21 22 23 At the bar she, according to her evidence, felt somewhat uncomfortable. She went by the door, she said, and people were looking at 25 REASONS FOR JUDGMENT 1 her, and also she went on to say that her cousin was not paying her much attention. 2 cousin was not paying her much attention. 3 she left the bar and she went onto the beach and she sat on a bench, I think she said, and there she was for about ten minutes when 4 and she sat on a bench, I think she said, and there she was for about ten minutes when 5 there she was for about ten minutes when 6 Kenny joined her. He asked her what happened. They spoke. Then he said he would keep her company. He started to tell her about Neliesa and himself. Because of the loud music, Kenny invited her to walk along the beach. Then there, I think they got to a swing, she said, and he invited her to sit. 7 happened. They spoke. Then he said he would keep her company. He started to tell her about Neliesa and himself. Because of the loud music, Kenny invited her to walk along the beach. Then there, I think they got to a swing, she said, and he invited her to sit. 8 keep her company. He started to tell her about Neliesa and himself. Because of the loud music, Kenny invited her to walk along the beach. Then there, I think they got to a swing, she said, and he invited her to sit. 9 keep her company. He started to tell her about Neliesa and himself. Because of the loud music, Kenny invited her to walk along the beach. Then there, I think they got to a swing, she said, and he invited her to sit. 10 loud music, Kenny invited her to walk along the beach. Then there, I think they got to a swing, she said, and he invited her to sit. 11 loud music, Kenny invited her to walk along the beach. Then there, I think they got to a swing, she said, and he invited her to sit. 12 swing, she said, and he invited her to sit. 13 she did so. They talked. And mainly 14 about — well, mainly Kenny telling her about his relationship with Neliesa. Whilst they talked, the cell phone - that is, Elena's cell phone, because she had had Elena's cell phone and also the keys to Elena's house. 15 Elena called her on the phone, they spoke, 16 and she told Elena that she would be with her in five minutes. She told us that the phone rang another time. It was again Elena. 17 cell phone, because she had had Elena's cell phone and also the keys to Elena's house. 18 Elena called her on the phone, they spoke, 19 Elena called her on the phone, they spoke, 20 and she told Elena that she would be with her in five minutes. She told us that the phone rang another time. It was again Elena. 21 in five minutes. She told us that the phone rang another time. It was again Elena. 22 rang another time. It was again Elena. 23 After this, she said Kenny asked her to show him how to turn off the phone. She did and he turned it off. Then she said she just REASONS FOR JUDGMENT 1 Laughed at that. She started to walk off, as if she was leaving perhaps, and the accused grabbed her — that is, Kenny grabbed her and put his right hand over her mouth, he put a knife to her throat. She said it was a black-handled knife. And she identified this knife in court, which was received in evidence as Exhibit 1. And I have to come back to this because much has been said about this knife, and as both counsel agree, both counsel are ad idem that this case turns on the issue of credibility. Whom do I believe? And that really is what I have to grapple with, bearing in mind, of course, the burden and standard of proof. 15 and standard of proof. 16 She told the Court that she managed to pull his hand from her mouth and she told him to let her go. He refused, pulled her to a fence. There he ordered her to take off her clothes and threatened to cut her throat if she did not. She did as she was ordered and he told her to Lie on the sand. She did. He knelt on the sand. Then he dropped the knife on the sand, she said, but the knife was REASONS FOR JUDGMENT 1 still within his reach. Then he touched her vagina - that is, put his hand on her vagina. 2 3 she said she did not want him to do that. He unbuckled his pants, took out his penis and inserted it into her vagina. She pushed him, and he said if she pushed him again he would cut her throat. She said it was painful when he penetrated her vagina. She cried and told him it was painful. He said he was not going to stop until his penis started to hurt. He moved up and down on top of her for some time and after he got off her she put on her clothes, she said, and then he told her to suck his penis. She told him she wouldn't do such a thing, or she didn't do that sort of thing, and he threatened to cut her throat if she did not. She was kneeling, she said, and he was standing, and he warned her not to bite him and threatened that he would cut her if she did. She said she sucked his penis because he forced her to. After she put on her clothes, picked up the phone and the keys. 22 23 keys. 24 25 She was heading in one direction when he REASONS FOR JUDGMENT 1 told her that she should go in a particular way, a particular direction, and they both went in that direction. That is, I think, she said the direction of the Library. 4 she said the direction of the Library. 5 He told her that he was going to kill himself and after that they went in different directions. She said eventually she walked home. She went to the bathroom and she noticed that there was slight bleeding to her vagina. On Tuesday - that is the Tuesday following. This happened on Saturday. So on Tuesday, that is about two to three days after, she told Charon Whitaker what had taken place. And in answer to Crown counsel, she insisted that she did not consent to the accused having sex with her and that she was forced to suck his penis. 17 18 19 Alicia was cross-examined by counsel for the defense who, with great skill, sought to challenge her, tested her credibility, and at the same time, of course, put his case, or the case of the defendant, to her. Under a few things. 25 24 cross-examination I am just going to mention 23 22 the same time, of course, put his case, or the case of the defendant, to her. Under 21 challenge her, tested her credibility, and at 20 defense who, with great skill, sought to 19 18 17 forced to suck his penis. 16 accused having sex with her and that she was 15 she insisted that she did not consent to the 14 taken place. And in answer to Crown counsel, 13 after, she told Charon Whitaker what had 12 Tuesday, that is about two to three days 11 following. This happened on Saturday. So on 10 vagina. On Tuesday - that is the Tuesday 9 noticed that there was slight bleeding to her 8 home. She went to the bathroom and she 7 directions. She said eventually she walked 6 and after that they went in different 5 He told her that he was going to kill himself 4 she said the direction of the Library. 3 went in that direction. That is, I think, 2 way, a particular direction, and they both 1 told her that she should go in a particular REASONS FOR JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 She said that her mother was strict and would impose a time curfew on her whenever she goes out or whenever she went out, and that if she breached the curfew her mother would beat her. She told us that she got permission from her mother before her mother left for her to go to the wedding and to the reception and the mother did not impose a curfew time, but I think she did tell counsel that her uncle gave a curfew time, if I remember, 10:00, 10:00 p.m. She admitted to counsel that she had had sexual intercourse with one Aaron before and that her mother had beaten her and that she was told not to have anything to do with Aaron again - or not to see him at all after school, and she told counsel that she did not continue the relationship with Aaron. She denied telling the police in her statement that she did not see the knife and counsel taxed her on this aspect of her evidence, and she was shown her statement, or part of her statement, where it is written "I did not see the knife" and she said that she did tell the police. She REASONS FOR JUDGMENT 1 insisted she did tell the police that she saw the knife and she said she described the knife. One must remember here, though, that there were two incidents when knives were mentioned. First, when the knife had fallen from the side of the defendant's pant to the bottom of the pant or the foot of the pant, if one might so describe it, and in that particular incident she said she did not see it, but she concluded it was a knife because of what she felt. The other occasion, of course, is at the beach when she alleged that she was raped. I must confess some difficulty in accepting fully the evidence of the police that she made no mention at all about the knife, because here we have Constable Best, who said he was assisting Mrs. Bernard, who was in charge of the investigation, but he showed her knives and asked her if she can say anything about these, well, with a view to her identifying these knives or any of them. And it would pass strange - well, how should I put it? 24 Let me put it this way. Something does not ring true with the evidence of Constable 25
Best, or Sergeant Best, and also that of
Woman Detective Bernard that she mentioned
nothing about seeing any of the knives. It
is difficult to see the police putting a
knife to her if she had mentioned nothing of
it. I am inclined to accept her evidence
that she did describe one of the knives, that
is, the one at the beach. In her evidence
in-chief she said it was a black-handled
knife and it was not the same knife which she
had earlier picked up. It was not a short
knife. It was like a kitchen knife, she
said, and she described how it came to a
point and so on. I accept that aspect of her
evidence. And, as I said before, one must
remember that she spoke of two knives, two
different incidents. 18.
Under further cross-examination she said she
did not scream because the accused had
threatened her. She did not tell anyone at
East End because they talk too much and she
did not tell the police because he had
threatened to kill her if she did, and she
said she did in fact tell Charon Whitaker. REASONS FOR JUDGMENT 1 that she did not want to tell the police 2 because of his threats. Of course, as 3 counsel quite correctly admitted, Charon 4 said she told him that she was afraid to tell 5 the police because she did not want her 6 mother to find out and that she was not 7 supposed to be out, but of course the mother 8 did say that she had given her daughter 9 permission to be out, or at least to go to 10 the wedding. One has to look at the evidence 11 in its entirety and see what one makes of 12 this. I remind myself that we do have 13 discrepancies, or contradictions if you wish, 14 in almost every case. It is for the Court to 15 ask itself whether this discrepancy, or 16 whether the discrepancies or inconsistencies, 17 whether they are material or slight, material 18 or immaterial. If, of course, they are 19 immaterial, then the Court is entitled to 20 ignore them. If, on the other hand, they are 21 material discrepancies, inconsistencies, and 22 there is no acceptable explanation, then the 23 court will have to consider whether that 24 discrepancy or those discrepancies, whether 25 they taint the entire evidence of the witness REASONS FOR JUDGMENT 1 so that the Court would say it is not safe to 2 accept any aspect of that witness's evidence, 3 or whether they only affect that aspect to 4 which they relate. And as such, the Court 5 may say I will accept other aspects of the 6 witness's evidence, but reject that 7 particular aspect. It is for me, as tribunal 8 of fact, to say what I make of it, and the 9 Court will determine this by looking at the 10 evidence in its entirety, because quite 11 often, as to what view the Court takes of a 12 particular bit of evidence, quite often that 13 depends on what view the Court takes of a 14 another bit of evidence. So I will bear all 15 of these in mind, and of course I will bear 16 the submissions of both counsel in mind as I 17 consider discrepancies and inconsistencies. 18 19 We will continue with her evidence. Under 20 cross-examination she said that after she 21 made the report - that is, after she made the 22 report to the police - I gather that she was 23 confronted by Neliesa in the presence of 24 Kenny - that is, Kenny and Neliesa Connolly 25 confronted her - and Neliesa asked her to tell REASONS FOR JUDGMENT 1 the truth in front of Kenny, and Neliesa 2 further asked if Kenny really did that. She 3 said, yes, he did, and she said that Kenny 4 did not say anything, he just smiled. Of 5 course, the accused, Kenny, in his evidence 6 said that he denied it. A matter here for me 7 to say whom do I believe. She said he made 8 no response, he just smiled. And if I accept 9 that, what do I make of it? Can I say that 10 quiescence is acquiescence? In other words, 11 that by his silence he was adopting what she 12 said? On the other hand, if I reject her 13 evidence, and he denied it of course, nothing 14 can be made of that. She also, in answer to 15 counsel for the defense, said that one Jeff 16 asked her what happened to her because he had 17 seen sand on her, perhaps that Jeff him to 18 ask, and she told him nothing. So we see 19 here that it is clear that Alicia was very 20 reluctant then to speak to anyone about the 21 incident because she did not say we were on 22 the beach and we had sex, but she said 23 nothing happened. That is briefly the 24 essence of Alicia's evidence. 25 1. Heath Christian was called by the Crown, and 2. I am not going to go through his evidence in detail. I will keep it in mind, of course. 3. Basically, he said that he had Lent a knife to Kenny, and he identified Exhibit 2, which was a ratchet knife, as the one that he had Lent. 4. We had Mrs. Phillips, Edith Phillips, the mother of Alicia, who told us that Alicia was born the 19th of March '87, and she told us that after she returned to the island she went with Alicia to the police, made a report, and subsequently she accompanied her to the doctor who had examined her. She, in cross-examination, told counsel that she punished Alicia when she had found out sometime before that she had had a sexual relationship with one Aaron and that she forbade her to see him after school hours. 5. Eleina also gave evidence. As I said before, she had gone to the wedding and reception with Alicia, and she mentioned about going into the bar. I will not go into 1. that in detail because I do not think, in my own mind, that will help me in determining whether or not sexual intercourse was consensual. 2. In mentioning Charron Whitaker and his evidence, of course the Crown was relying on that evidence of recent complaint as showing consistency, and also too the Crown is relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 3. whether or not sexual intercourse was consensual. 4. consensus. 5. In mentioning Charron Whitaker and his evidence, of course the Crown was relying on that evidence of recent complaint as showing consistency, and also too the Crown is relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 6. In mentioning Charron Whitaker and his evidence, of course the Crown was relying on that evidence of recent complaint as showing consistency, and also too the Crown is relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 7. evidence, of course the Crown was relying on that evidence of recent complaint as showing consistency, and also too the Crown is relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 8. that evidence of recent complaint as showing consistency, and also too the Crown is relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 9. consistency, and also too the Crown is relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 10. relying on the evidence of recent complainant as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 11. as negating consent. So two aspects to that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 12. that evidence. I am not going into detail about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 13. about his address and so on. He told us that he was at the bar drinking when Alicia came and asked him if she could talk to him. 14. he was at the bar drinking when Alicia came and asked him if she could talk to him. 15. he was at the bar drinking when Alicia came and asked him if she could talk to him. 16. well, he said he was not really inside the bar, he was outside. He finished and then he went across the road with her and she told him that Kenny held her up with a knife a couple nights before, made her suck him - and I think the word he used - and he grind her. 17. well, he said he was not really inside the bar, he was outside. He finished and then he went across the road with her and she told him that Kenny held her up with a knife a couple nights before, made her suck him - and I think the word he used - and he grind her.
went across the road with her and she told him that Kenny held her up with a knife a couple nights before, made her suck him - and I think the word he used - and he grind her. 19. him that Kenny held her up with a knife a couple nights before, made her suck him - and I think the word he used - and he grind her. 20. couple nights before, made her suck him - and I think the word he used - and he grind her. 21. I think the word he used - and he grind her. 22. Counsel asked what that meant, and he said that meant had sex with her. He told the court that Alicia was crying and asked him to tell Kenny to stay away from her. He also REASONS FOR JUDGEMENT 1 mentioned that she was trembling, as well, 2 and that she showed him a mark under her chin 3 which she said the knife had caused. He 4 looked at it and it was a sort of scrape, he 5 described it. So that is his evidence. 6 7 In that light, I should just read into 8 evidence the admission by both counsel that 9 the following facts admitted by the 10 prosecution and defense. On the 25th of 11 October 2002 Alicia Watkins was examined by 12 Dr. Robertson at George Town Hospital. There 13 were no signs of any injury noted to the face 14 or neck of Alicia Watkins and she did not 15 report any injury to those areas. This, of 16 course, on the 25th of October, and I think 17 Charron had seen her about the 15th. That is 18 over a week away, so bear that in mind, too. 19 20 Then we come now to consider Sergeant 21 Charles Best, who at that time was attached 22 to, I think he said, the CIB. And he 23 recalled that on the 24th of October 2002, 24 Mrs. Edith Phillips brought her daughter 25 Alicia and a report was made by Alicia REASONS FOR JUDGEMENT 1 against the defendant, Mr. Kenny Whitaker. 2 He visited the scene, he said, of the alleged offence. On the 31st of October, WDC Walter and himself went to the home of the accused. 3 He was not there then, but they subsequently saw him. He identified himself to the accused and told him of the report he had and that he was investigating it. He cautioned him and he said that is a Lie. That is when he had told him of the report that Alicia had made about the rape and so on. He said that is a Lie. He arrested him on suspicion of rape and he said nothing, just shook his head. He was taken to Central Police Station head. 15 where he was booked. 16 17 On the second of November 2002 the accused was taken to the Bodden Town police station and statements were shown to him. First, the cautioned statement was shown to him and he identified it as a cautioned statement that he took from the accused, and that was received as Exhibit 3. Also, questions and answers were read into evidence and they were received - that is, the document containing REASONS FOR JUDGMENT 1 the question and answers. That was received in evidence as Exhibit 4, and I am not going to read through all of this. Later on I might mention one or two aspects of it. He also identified the knife that was received from Nleesa Connelly on the second of November, mentioned other items, which I do not think are of any moment at all, such as a T-shirt and so on. 10 In cross-examination he said that he had read the statement before he had asked Alicia, that he had read Alicia's statement before he had asked her to identify the knife, and he said he remembered her statement when he showed her the knife and she said that she would now be able to identify the knife. I have made comments on that already, so I will not repeat myself 19 there. 20 there. 21 22 We also have the evidence of Andrea Walter Bernard. She was the investigating officer and she told us of her investigation which ultimately led to the arrest and charge of REASONS FOR JUDGMENT 1 the accused person. He was charged, of course, with rape and indecent assault. In answer to counsel for the defense, she said that she took the statement from Alicia Watkins and she wrote down what Alicia told her, and she said that if Alicia had told her, had described the knife, she would have written it down. So her evidence is that Alicia did not tell her that she had seen the knife and she could not remember if she had described any knife. Well, if she had not seen any knife, she, of course, could not describe it. So that was her evidence. 13 14 15 And we have also the statement of Dr. Robertson, which was read into evidence, and this examination was done on the 25th, as I said, sometime after the incident. She said that on examination there were no signs of injury to the torso or limbs. On examination of the external genitalia there was no recent injury or vaginal discharge. The hymenal ring was not intact with a tear at the seven o’clock position. So that is the gist of what she said. REASONS FOR JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So that is the evidence adduced by the Crown, in brief. And I must say this, that in reviewing the evidence, of course I have not gone through all, but in my consideration of the crucial or the vital issues here, especially one of whether or not there was consent, because that is the main issue indeed, I bear in mind all the evidence that will assist in coming to a decision on that. The accused person gave evidence, and of course he had a right to stay there and say nothing where nobody could ask him questions. He gave evidence and of course exposed himself to cross-examination. Gave his name as Kenny Roger Whitaker, 26 years old. He told us that Alicia Watkins was his girlfriend's best friend, Nleesa Connolly. He told us about interruptions in their relationship, that being the relationship between himself and his girlfriend Nleesa. I am not going into the different aspects of the interruptions as he mentioned. But as to Alicia, he said that Alicia was not really REASONS FOR JUDGMENT 1 his friend, Alicia was really his girlfriend's friend. He did not like her more than a friend, but he told us that 2 Alicia said that she liked him more than a friend, and this was before October 2002 – he said a couple of months, I think he said, 3 he was in the park listening to music and he told her that he did not feel like being around anybody else. He told her that his girlfriend, that is Alicia's friend, had just broken up with him. Alicia asked him why and he told her why. Then, according to him, 16 Alicia told him that he needed to move on with someone else, and he asked her with whom, and she said it could even be her. 18 somehow, as I looked at Mr. Whitaker as he gave his evidence, this just did not ring true to me. You know, sometimes watching a witness as he gives evidence -- I do not know 22 if that sort of a smirk on his face is something that is indicative of anything, but 24 he has a smirk on his face -- and the 25 REASONS FOR JUDGEMENT 1 demeanour of a witness sometimes goes a far 2 way in assisting a Judge who has to evaluate the evidence and to assess the veracity of a witness, helps the Judge to come to some conclusion as to whether this witness is credible, whether the witness is speaking the truth, whether the witness was making up some things as he or she goes on giving evidence, and therefore the witness switches from one thing to the next and so on. A Court is able to pick up these things. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 As I said, as Mr. Whittaker gave evidence here about this aspect of his case he was not being cross-examined here. Counsel was quite gentle as he elicited this evidence from him, and I must say that Mr. Whittaker did not impress me here at all as a witness of truth as I watched his demeanour as he testified. He went on to say that he told her that he could not do that because of Neliesa. So this is a person who is saying that he could not do what Alicica suggested because of Neliesa. He was telling her at this stage, too, that they had broken up, but he could not. REASONS FOR JUDGMENT 1 consider accepting her friendship because of Neliesa. And a little after we have him, 2 according to his own evidence, having consensual sex with Alicia. Somehow this does not ring true. He said that when he told her so she did not seem upset. She stayed a while and they talked. Then, before they left, she asked him if he was going to tell Neliesa and he told her no. And he said up until October the 12th he had no further conversation with Alicia about her liking him. He told the Court that he told Neliesa what she had said. Then a couple days after he said that he had reconciled with Neliesa. 15 Then he went on to speak again about Alicia. 16 He said that sometime in East End, at 17 someplace I think he called Maria's, a house he called Maria's - apparently it is a place where people go and drink and so on - he saw Alicia there and he saw her hugging Aaron, 18 and that was a couple of weeks before 19 October. So this is Alicia who was offering her friendship to him, and a couple of weeks before October he had seen her hugging Aaron. REASONS FOR JUDGEMENT 1 2 On the 11th of October he said he was still in a good relationship with Neliesa. And even the following day, the 12th of October - 5 that's the day of this incident - that he was in good relationship up until 4:30. He said 4:30 that afternoon he was still in good relationship with her, but apparently around 4:30 they had an argument. He felt depressed after the argument. He said he had never been in love before. He was in love with Neliesa. Although he felt depressed, he said he had to go to the wedding because it was his brother's wedding. He had promised him to be there. At the wedding, he saw Alicia. 13 14 15 16 At some points his evidence is more or less consistent with Alicia - might be slight variation, but essentially the same - asking her - the knife had slipped from his waist down to the trouser's foot and he ask her to pick it up, and so on and so forth. I am not going to go into detail there. He said that he had this knife because he was going to do something with himself. He was planning to kill himself and he had planned to do this 22 23 24 25 REASONS FOR JUDGMENT 1 after the argument with his girlfriend Nelesa. He got the knife from a friend and then he related a past incident in which he slit his wrist or cut his wrist and so on. 2 Nelesa. He got the knife from a friend and 3 then he related a past incident in which he 4 slit his wrist or cut his wrist and so on. 5 He recalled, too, the incident about asking 6 Alicia to take food to Nelesa and so on. I 7 am not going go into detail there because I 8 do not think he is contradicting Alicia's 9 evidence in that regard, but he told us that he went to Nelesa and he told Nelesa that he was planning to kill himself and that he was 10 was planning to kill himself and that he was 11 serious about it. He had told us about 12 getting a knife, as I said, from a friend, 13 and he got one from Nelesa - took it from Nelesa's house, too - and he said the knife 14 and he got one from Nelesa - took it from Nelesa's house, too - and he said the knife 15 from Heath - he Left it' at a friend's house, 16 the one he got from his friend - that is, 17 he got from Nelesa, he Left it at home, and 18 and this friend, Later on he said, was a 19 girlfriend Denise. He said he Left the knife 20 there because he did not want to get in 21 trouble. His state of mind, he said, was 22 pretty much the same. And I recall his 23 evidence here when he was cross-examined as 24 to the knife, why he said he did not have the 25 REASONS FOR JUDGMENT 1 knife at the time when he went to Nelesa's house. He had Heath's knife then, if his evidence was true, and here he admitted that he lied as to the knives. I will come back to that later on, but I will go now to the incident or what took place on the beach. 6 incident or what took place on the beach. 7 His evidence coincides with Alicia's evidence that she was sitting on a bench by the beach and he approached her and asked her how come she was by herself, and she said she was there because her friend was not paying her any mind and she did not sound happy, but he could not say she was really upset. She said she did not want to be around the bar because people were staring at her. They talked, he said, and they walked off the beach, and he said he guessed they moved off because of the noise. They continued talking. He continued telling her about his girlfriend and she told him, he said, that he might as well give up. He said they continued talking and she seemed quite friendly. He said she was quite friendly and then they went to a little cabana - that is, REASONS FOR JUDGMENT 1 they moved from the swing. From the swing to 2 the cabana, about 15, 20 feet from where 3 the swing was. They could sit there. They 4 both sat and they continued talking. He said 5 that there was no street light nearby. And 6 he told us that Alicia told him, or continued 7 to tell him that he needed to forget Neliesa 8 and move on. Then she told him that she 9 liked him from the time she had met him. 10 They started to kiss. She kissed him, he 11 said, and then he kissed her back. They 12 started petting, then he said he felt her up 13 - that is, he put his hand between her legs. 14 she took off her pants. He said he started 15 to have sex with her - that is, he put his 16 penis in her vagina - and he said he stopped 17 for two reasons, and he gave us those 18 reasons. One, that she told him that it was 19 hurting her and the other reason, he said, 20 was because of conscience, conscience about 21 his girlfriend because he still had a strong 22 feeling for her. He denied asking or forcing 23 Alicia to have oral sex with him. Indeed, he 24 denied that there was any act of oral sex. 25 He denied having a knife with him at that REASONS FOR JUDGMENT 1 time and he said he did not threaten her at all. In other words, what he was saying is that it was consensual sex. 2 3 that it was consensual sex. 4 5 Before she left he said that she asked him if he was going to kill himself and he told her yes. This perhaps is somewhat strange. 8 Perhaps not very strange, but he had, 9 according to his evidence, the knife with him because he intended to kill himself. But at the beach where they had sex he said he had left the knife, but yet he said he still intended to kill himself in answer to Alicia's question. 13 14 Alicia's question. 15 16 He was shown or asked about the question and answer and question 37 was put to him. The question is "What caused you to stop the sexual act with Alicia? I never had any in the first place." And other questions, too, which I need not refer to. So here in this statement he denied having sex with Alicia, 22 and he admitted that he was telling the police lies, and then he went on to give 23 24 police lies, and then he went on to give 25 explanations. He said Neliesa was more REASONS FOR JUDGEMENT 1 important to him than telling the truth. I 2 think if Neliesa found out she would break up with me again. 3 with me again. 4 He went on to say that after partying ways with Alicia on the 12th of October, he headed home. He stayed there for a while and then he went to Neliesa's house and made up with her that night. Then, about three to four days after that, his girlfriend came to him about certain allegations or perhaps rumours that she had heard. He said he did not go to the police, but about two weeks thereafter they confronted Alicia at the primary school. 15 I have already made mention of that. 16 17 He also was cross-examined by counsel for the Crown. Counsel asked him about his drinking habits and the splitf that he had taken, and so he told counsel that he had certain number of drinks and he was drunk. 21 Now, intoxication laws of these Islands: 22 Intoxication shall not constitute a defence to a criminal charge save as provided by 23 Intoxication shall not constitute a defence 24 to a criminal charge save as provided by 25 Section 11 of the Penal Code, and the REASONS FOR JUDGEMENT 1 circumstances under which intoxication would provide a defence, they would not exist in this case, so I will not say more about that. 2 3 Counsel questioned him about the Lies he told and he accepted that he Lied to the police. He accepted that he Lied, yes, when he said he did not have sex with the girl at all, and so on. Then he was questioned about the knives, too, and he agreed with counsel, too, that he Lied about the knives at the time when he said that he did not have a knife, not that he did not have the knives when he Left one at Neliesa's home and then Left one at the friend's home. I am not going into detail, but just the fact of the Lied there as to the knife is something that I would have to look at because he has admitted that and both counsel addressed me on that. 4 5 Counsel for the prosecution asked the Court to say that the Lied in the circumstances would constitute corroboration of Alicia's REASONS FOR JUDGMENT 1 evidence. And, of course, counsel for the 2 defence asked the Court to say that the Lies 3 as to the knife – I am not thinking of any 4 immaterial Lies because the Lie must be in 5 respect of a material fact, and the knife is 6 important because Alicia is saying that he 7 had a knife at the beach which he put at her 8 throat, and he is saying no such thing. I 9 had no knife at the beach. 10 11 Well, following the Lucas principle, a Lie 12 told by a defendant can only strengthen or 13 support the evidence against the defendant if 14 the Court is satisfied that (A) the Lie was 15 deliberate (B) it relates to a material issue 16 and (C) there is no innocent reason for it. 17 And in considering this, the Court must 18 remember that sometimes Lies – for example, a 19 person Lies, for example, in an attempt to 20 bolster up a just cause or out of shame or 21 out of a wish to conceal disgraceful 22 behaviour. So the Court must bear this in 23 mind that a person might Lie for any of these 24 reasons. And the Court can only really act 25 on the Lie when clearly the Lie indicates a REASONS FOR JUDGMENT 1 realization or recognition of guilt. 2 Counsel for the defense is suggesting that 3 the accused has given an innocent explanation as to — or perhaps a reasonable, or should I say credible, that's the word — 6 say credible, that's the word — 7 credible explanation as to why he lied about the knife and mentioned some aspects of that. 8 he said first that Neliesa meant so much to him. I think counsel said Neliesa was his primary concern. Then also too the 11 defendant's attitude towards the police. He said that he is resigned in his attitude to the police and does not trust the police. So there is a lack of trust. Now, as to the main thrust here that says that Neliesa was his main concern and that is the reason why he lied, did not want her to know, it is true that indeed he might not have wanted Neliesa to know that he had had sexual relationship with Alicia, whether consensual or not, 21 however, I'm inclined to the view that it is out of a recognition of guilt why 23 Mr. Whitaker told the police - sorry, lied 25 about the knife. I believe Alicia's evidence REASONS FOR JUDGMENT 1 that he had the knife there and it is out of a recognition of guilt why he Lied. So this Lie was deliberate. And of course it relates to the material issue, the knife, because Alicia is saying that he used the knife to intimidate her and to force her to submit. 6 And I am clearly of the view that there is really no innocent explanation for the Lie. 8 really no innocent explanation for the Lie. 9 No innocent explanation for the Lie. 10 Now, as I said — well, I might not have said this. Yes, I think I did mention burden and court, having asked itself why he Lied, and having come to the conclusion that he Lied out of a recognition of guilt, he recognized that if he had admitted — or let me put it this way, or in regards to the knife, yes, he Lied, as I said, because he did not want it to be believed that he had the knife at the time when he went to the beach. I want to say this also, that even if I had not found that the Lie as to the knife would constitute corroboration, but having found that he Lied as to the knife, I would be entitled to ask myself why has he Lied, and I would be REASONS FOR JUDGEMENT 1. entitled to use the fact of the Lie in determining whether or not Alicia spoke the truth when she said that he had a knife at the beach and put the knife at her throat. 2. determining whether or not Alicia spoke the truth when she said that he had a knife at the beach and put the knife at her throat. 3. And I accept the evidence of Charron Whitaker that he saw what he called this injury at the chin or by the chin of Alicia. 4. He said it looked like it was a scrape or that the chin was scraped. And the evidence is that the knife was a sharp knife. And the fact that the doctor found no injury, that can be explained easily because the doctor saw her on the 25th, that is sometime after. 5. So when one looks at the evidence - the evidence of the recent complaint, the evidence of Charron Whitaker that he saw the injury under her chin, then the fact of the Lie with regards to the knife and also too another Lie, namely that he had no sexual intercourse at all with her, had nothing to do with her that night - having considered all those bits of evidence, I am convinced that Alicia spoke the truth. So I have REASONS FOR JUDGMENT 1 rejected the evidence of Mr. Whitttaker that 2 the sexual intercourse was consensual and I 3 have accepted the evidence of young Alicia 4 that Mr. Whitttaker, Mr. Kenny Whitttaker, had 5 the knife, that he put the knife by her 6 throat, ordered her to take off her clothes, 7 and then against her will he had sexual 8 intercourse with her and, thereafter, that he 9 forced her to perform oral sex. In other 10 words, to put it in her own words, to suck 11 his penis. I accept her evidence that she 12 was threatened as to what would happen if she 13 screamed and if she made complaints, and also 14 too, as she rightly said — and this is part 15 of her honesty too, in my mind — she said 16 that she did not tell her mother because she 17 was afraid, and that was not the sort of 18 thing that she would want to talk to her 19 mother about. 20 21 Having said all of that then, I find the 22 accused person guilty as charged. Guilty 23 with respect to Count 1 and guilty with 24 respect to Count 2. 25 REPORTER'S CERTIFICATE I, CAROL A. ROUSE, Official Court Reporter, hereby certify that the foregoing pages are, to the best of my skill and ability, a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned. DATED THE 20th DAY OF FEBRUARY 2004 CAROL A. ROUSE