IN THE COURT OF APPEAL
ST. VINCENT
High Court Cl1.mina.l Appeal No. 6 of’ 1972 ERROL Appellant Between:
SMITH
and THE QUEEN R~sponden t
Bef’ore: The HQnourable the Chief’ Justice The Honourable Mr. Justice Cecil Lewis The Honourable Mr. Justice st. Bernard G. Isaacs f’or appellant A.T. Warner Q.C. (Attorney General), Miss M. Joseph with him, f’or respondent
1972, May 17
JUDGMENT The judgment of’ the eourt was delivered by I.EWIS, C.J •
The Court is indebted to Mr. Isaacs f’ or the arguments
which he has put f’orward in this case today, and, although
some of’ his submissions have not met with f’avourable reception
the Court nevertheless bears in mind that leave was granted to
the appellant and that learned counsel quite readily accepted
the Courtts assignment to argue the case.
The appellant was convicted on the 18th Fe~ruary, 1972 of’
the of’f’ence of’ rape in respect of’ a young woman named Marie
Mc Kie. It is not necessary to go into all the details of’ what
was a rather unsavoury incident. ‘1.he young woman said that
she was gping home carrying a bag with some bread in it and she
f’el~ a man, who turned out to be the appellant, hold her by
the throat. He was wearing only a bathsuit and he pulled her
into the bush, r’ather high lemon grass bush, threw her to the
ground and had sexual intercourse with her twice against her
consent. She was at the time having her period and the two
panties which he, according to her evidence f’orcibly removed f’rom
/her •••••••••••••
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her body and the pad which she was wearing were all satu~8.j,§<t “
wi th blood which the laboratory technician said might be
menstrual blood.
When she came out of the bush she was seen by a witness,
J~queline James, to be crying, her dress was rumpled, there
were bits of’ grass in her hair and Jacqueline James inquired
of her why she was crying. She then made a report to , ‘(“
Jacqueline James about the incident Which had occu7ed between
herself and the appellant.
Subsequently, she made a report to a woman police who accompanied her back to the scene as well as another corporal of police, and one of’ the panties and the pad \vas f’ound there. Certain aspects of her conduct could be considered as
somewhat unusual for a person who had been assaulted in the
way that she says she was. For example, it was elicited
from her in cross-examination that at one stage after she had
dressed, there were people passing and that at the instance
of the appellant she remained in the bush. It was also
elicited f’rom her that in the course of’ the scuffle or struggle
whatever took place – she lost her watch and that the appellant
looked f’or it and f’ ound it and gave it to her. These aspects
of her conduct – her delay in leaving the scene after the
incident – were lef’t to the jury on theq uestion of’ consent,
and the judge quite properly pointed out that one explanation
might be that she was still under f’ear of’ the appellant, because
she said that on more than one occasion when she atten.pted to
scream out he threatened, to use her words, “to rar.l a stick
down my throat”.
At an identif’ication parade which took place on the f’ollowing
day she identif’ied the appellant as the person who had raped
her.
Tne police went in search of’ the aIPellant after they received the report from this girl, and when he was told of’ /the ••••••••• 00 •••

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the complaint his first reply was that he knew n~thing at all
“about this incident. Subsequently, after he had been identified
by the prosecutrix and his bathing trunk had been found
at his house blood-stained, a nd after some prolonged questionHe
said that he knew the ing by the police, he gave a story. girl before and that on the day in question he saw her pass near to the Post Office; he called out to her to wait and she prompt­ ly began to run aWay from him, but he followed her J met her
talking to two girls by the Preparatory School and on her seeing
him she ran off again, but she fell in the grass and he got on
top of· her and asked her to l:Iave sex with him. Sne refused,
but he led her into the bush and there he began to disrobe her.
He says that at that stage she herself took off her panties.
The rest of his evidence amounts to a suggestion that she
acquiesced, having at first refused she eventually ac~uiesced,
in having sex~a1 intercourse with him. At the trial he gave
evidence to the same effect.
The learned Judge gave the jury a proper warning about the
need for corroboration and he pointed out to them some mattera
which might be considered as corroboration. It is in respect
of this direction that the first ground of appeal was taken.
The Judge told the jury that the f act that when the girl came
out of the bush she WaS seen to be crying was capable of amount­
1ng to corroboration. Learned counsel for the appellant has
submitted that this was wrong, that the crying which took place
was part and parcel of the complaint which was made to Jacqueline.
The Court is unable to accept 1:bat submission because she was seen
to be crying before she made t hat complaint} and, indeed, the
evidence is thatit is the fac t t ha t she was crying that caused
Jacqueline to ask her why she was crying. Then, the Judge said
that the evidence that the accused himself gave as to her running
after he had called her is evidence which is ca2aole 01 being
corroboration. Here again.. le’srned counsel first s.1bmi tted that
/that 0 ••••••••••••
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that evidence if taken with the rest of the appellant t s evidence
that she took off her panties and so on could not be
capable of amounting to corroboration; but he quite frankly
conceded that it was a matter for the jury to say how much of
hiS evidence they accepted, and if’ they accepted that he did
run af’ter her and that, according to the statement that he gave,
she fell down and he got on top of her, and I’ ejected the rest of’
his evidence about her acquiescing, then this would b e very strong
corroboration When one adds to that fact the fact that indeed.
her watch came off of her wrist, although the cold print does
not indicate that there was any violent struggle between these
parties, it is obvious that there must have been a struggle
during the course of which this watch came off’ of the girl t a
wrist. The judge also told the jury that the evidence that
there was grass in the girl’s hair migut be corroboration.
Well, here the Court thinks the Judge was in error because
obviously even if’ she had consen ted she might ver~r well have
grass in her hair having regard to the place where the incident
occurred.
The sort of corroboration which was required here was corroboration
of her statement that she did not consent, because the
appellant having eventually put himself on the scene merely put·
in issue the question of co nsent • He said that he did have
intercourse with her but that she consented; that was virtually
his. def’ence and the Court feels that these 0 ther matters to which
we have ref’erred were capable of’ amounting to corroboration 0’1
this issue.
There is alao the fact that when the 60mplaint was first
put to him he denied that he knew anything about the matter.
This denial was an admitted lie because he sUbsequently admitted
to having had intercourse with her, and that lie, it is well
known, may also amount to corroboration of’ the girlts story.
TRe other ground of’ appeal was that the verdict of the jury
Iwas o.~ .. ooo •••••••
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was unsa~e and unsatisfactory. Learned counsel referred to
the portit)n of the evidence – in fact, he read from the judge’ 8
summing up where tl’:e jUl ge particularly drew the a ttention o~ the
jury to those portions of the woman’s story Wilic~l he told them
they might regard as unusual. But the jury had to look at
at the wh’lle of the evidence, her evidence that she wes unwilling,
his evidence which indicated that she was unwilling, the
loss of the watch, the fact that when she came out she was crying,
that she persisted in her reports which she made to various
people including the police and to balance those facts against
what might be considered as unus1lal aspects ot: her conduct.
They must have corre to the conclusion that they believed her
story substantially, for they found the appellant gu~lty, and
the Court sees no reason to interfere wi th that verdict.
For these reasons the aTIpeal is dismissed. J:
Allen Lewis
CHIEF JUSTICE