Ogilvie v The Queen

JurisdictionGrenada
JudgePeterkin, J.A.
Judgment Date25 July 1986
Neutral CitationGD 1986 CA 12
CourtCourt of Appeal (Grenada)
Date25 July 1986
Docket NumberCriminal Appeal No. 8 of 1985

Court of Appeal

Haynes, P.; Peterkin, J.A.; Liverpool, J.A.

Criminal Appeal No. 8 of 1985

Ogilvie
and
The Queen
Appearances:

B. Sylvester for Appellant.

Doodnauth Singh for Respondent

Criminal law - Appeal against conviction — Burglary and rape —

Facts: Appellant's case was that the defendant let him into the house and consented to intercourse. No medical testimony presented to court to corroborate defendant's testimony that she had been beaten. Police testified that the door to the house had not been burst. No witness called to give evidence that the defendant had complained or that such witness had heard anything strange during the night in question —

Held: Appeal allowed. Conviction quashed and appellant discharged.

Peterkin, J.A.
1

At the conclusion of this matter the Court indicated that the appeal would be allowed, and that the reasons for so doing would be later submitted. We do so now.

2

The Appellant was convicted on 15th October, 1985, on two charges of Burglary and Rape, and sentenced to 10 years and 7 years respectively. He has appealed against both convictions and sentences.

3

Briefly, the facts and circumstances are that during one Tuesday night in September of 1983, according to the Complainant whose boy friend was away in Trinidad at the time, she was alone in her house at Happy Hill along with her 9 month old baby and a two year old child. She alleges that the Appellant, after shouting and pounding at her door, eventually burst it open and came inside. She stated in evidence that he wrestled with her, struck her, tore off her dress and panty, inserted his penis into her vagina, and had intercourse with her. Her evidence in part reads:

After I heard the pounding on the door I got up and sat down on the bed to listen. I heard the accused say “Open the fucking door! open the mother cunt door!” I still did not answer. I started to get frightened. He shouted “Before I shove the fucking house in the ravine.” There is a ravine about like from here to where the officer is from my house (20 feet). When he said that I got frightened and I started to bawl.

The accused then burst open the front door and came inside. The bolt to the door “run off”: I had a small kerosene bedroom lamp which enabled me to see his face.

When he came up to me he was touching my breast. I boxed away his hands and started to bawl: He boxed me very hard in my face and said “hush your fucking mouth.”

Soon after that my little baby got up and she started to cry. I picked her up and the accused started to wrestle with me.

While he wrestling with me I was on the bed still when I picked up the child. He then said “oh you pick up the child, is on the floor I want you.”

We then both start wrestling together until he get me on the floor. While on the floor he held my throat with one hand and he was trying to take off my clothes with the other hand. I had on a silky dress and a panty.

While we were wrestling the baby got off on the bed and me and he on the floor. The other two (2) years old child was sleeping on the bed.

He tore my dress off like this (witness demonstrates how). He tear off the panty on me too. He was trying to get his penis in my vagina.

I saw his penis it was standing out straight. While he had me on the floor he pulled off his pants. I did not agree for him to do that.

When I was on the bed he said “I want to fuck you.” I tell him “No.” He tried a good time before he eventually get his penis in my vagina because we were wrestling.”

4

And again:

Soon after he got up from my mouth and get back on me. He started to have sex with me again. I still did not agree. I started to bawl again and he started to cuff me up all in my belly and all in my side.

5

And yet again:

When he left I waited until outside get bright and I went and told the neighbour. The neighbour house is like from here to the garage (100 feet). I then went to another house where a man lived and I went to the St. George's Police Station by the Esplanade. It was the same morning. I met a man. A policewoman then brought me to the doctor at the health centre.”

6

The Defence was one of consent. When formally charged and cautioned, the Appellant replied that he had a lot to say. He said it all in an unsworn statement from the dock. He said in part:

On September 6th, 1983 I met Joyce Dick at the Moliniere water pipe. That was around 5.30 in the afternoon. We spoke with one another and as a result of that she gave me consent to come at her home that night.

I went by her around 10.30 that said night. On reaching her home where there is other houses...

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