COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

MCCrApp. No. 3 of 2007

BETWEEN

Marlon Henfield
Appellant
Vs.

Commissioner of Police
Respondent

BEFORE:

The Rt. Hon. Dame Sawyer, President

The Hon. Mr. Justice Ganpatsingh, J.A.
The Hon. Mr. Justice Osadebay, J.A.

APPEARANCES:

Mr. Murrio Ducille for the Appellant

Mr. Vernal Collie for the Respondent

DATE:

22nd January, 2008, 27th February, 2008

Reasons for Decision of the Court, given by the Honourable Mr. Justice
Osadebay

1.

The appellant, Marlon Henfield, was on the 29th May, 2007, convicted at

the Magistrates Court, Freeport, Grand Bahama, on a charge of two counts of

offences of unlawful sexual intercourse contrary to Section 11 (1) of the Sexual
Offences and Domestic Violence Act, Chap. 99 of the Laws of The Bahamas and
was sentenced to a term of two years imprisonment on each count to run
concurrently. He appealed the conviction and sentences.
2.

On 22nd January, 2008, we heard the appeal. We allowed the appeal and

set aside the conviction and sentence and promised to give our reasons in due
course. This we now do.
3.

The facts in this case are set out in the decision of the Stipendiary and

Circuit Magistrate. The complainant, Lynndell Gardiner, who was 15 years old at
the time of the alleged offences was a student at Sunland Baptist Academy in
Freeport, Grand Bahama where she met and became acquainted with the
appellant, Marlon Henfield, who was then her Physical Education Teacher. Ms.
Gardiner developed a crush on the appellant. Being a forward and bold young
girl she, by deception, obtained the appellants cell phone number. She had
asked permission from the appellant to make use of his cell phone to contact her
mother to pick her up from school knowing that her mothers cell phone had the
ID facility which would record the appellants cell phone number. She later
retrieved the appellants cell phone number from her mothers cell phone and
began to send text messages to the appellant. She stated in her evidence that
she spoke regularly with the appellant in school.
4.

She said in her evidence that at about 1:00 am on Sunday, 25th July,

2004, the appellant picked her up from a corner a short distance away from her
home, driving a jeep that she had seen another teacher named Ms. Malcolm
driving before.

They drove to the appellants apartment on the top floor of

Harbour Towers Condominium where they engaged in sexual intercourse.

During the drive to the appellants apartment she had concealed her face with a
hooded sweater which she got from the rear of the jeep.
5.

In the early hours of Monday, 23rd August, 2004 the appellant on this

occasion, driving a Honda Civic motor vehicle again picked her up from outside
her residence and took her to his apartment where they again engaged in sexual
intercourse. When they finished, the appellant drove her home.
6.

Ms. Gardiner initially had denied having sexual intercourse with the

appellant. She actually said it was another person. However she subsequently
admitted that she did have sexual intercourse with the appellant. Under crossexamination by counsel, Mr. Murrio Ducille, she readily admitted that her
testimony to the court was not what she had told the police in her statements on
24th August, 2004 and on 19th January, 2005.

She admitted under cross-

examination that in her written statement dated 24th August, 2004, she told the
police that the last time she had sexual intercourse with the appellant was in
July,2004. she also admitted that some of the testimony she had given to the
court regarding the events of 25th July, 2004 were not recorded in either of the
statements she had given to the police.
7.

Under cross examination by counsel, Ms. Gardiner had admitted that she

had obtained the appellants cell phone number by deception. She admitted that
when questioned by her parents she had told her mother that she did not have
sex with the appellant and had told her father that there was nothing going on
between her and the appellant.
8.

Ms. Gardiners evidence of sexual intercourse with the appellant was not

corroborated by any other evidence forensic or otherwise.

Ms. Gardiners

evidence stood by itself, uncorroborated by any other evidence.

9.

At the close of the prosecutions case the appellant was called upon by

the Magistrate for his defence. There was nothing on the record to indicate
whether a submission of no case to answer was made on behalf of the appellant.
10.

The appellant gave sworn evidence and denied ever having sex with Ms.

Gardiner and specifically on 25th July, 2004 and on 23rd August, 2004 as
charged. His defence consisted of an alibi to the effect that he and his girlfriend,

Shantell Nesbitt had travelled to Norfolk, Virginia, in the United States of

America, on 17th July, 2004 and had returned to Grand Bahama on 24th July,
2004 and that on their return, he and his girlfriend were collected from the airport
by Shantells mother and were taken to Shantells residence where he remained
from 7 p.m. that night until 11 a.m. on the 25th July, 2004.
11.

Ms. Nesbitt and her mother, Eusally Nesbit, corroborated the appellants

alibi. There was no evidence contradicting the alibi.

12.

Notwithstanding the inconsistent evidence of Ms. Gardner and the

appellants denial and alibi, which alibi stood un-contradicted, the Magistrate
came to the conclusion that the prosecution had proved their case beyond
reasonable doubt. The appellant was convicted.

THE APPEAL
13.

The appellant challenged the conviction on a number of grounds:

1.

The Learned Magistrate erred in law when she called

upon the Appellant when she found the Appellant had
a case to Answer.

2.

The Learned Magistrate erred in law when she failed

to give adequate directions to herself as to what
relevance she should attach to the evidence of
LYNDELL GARDINER of her previous statement
made to W/DCPL/LOWE.

3.

The Learned Magistrate erred in law when she failed

to

adequately

direct

herself

on

how

to

treat

inconsistencies in the evidence given by the witness

LYNDELL GARDINER.
4.

The Learned Magistrate erred in Law when she found

that the prosecution had proven its case beyond a
reasonable doubt.

5.

The verdict is unreasonable and cannot be supported

having regard to the evidence.

6.

The verdict is unsafe and unsatisfactory having

regard to the circumstances of the case.

14.

At the commencement of the hearing of the appeal ground 2 was

abandoned by the appellant. The remaining grounds are so interwoven that it is

more convenient to deal with them together.
15.

Counsel for the appellant submitted that in keeping with the principles

expressed in R. v. Galbraith [1981] 1WLR. 1039 the learned Magistrate ought

not to have called upon the appellant to answer a case as the witness, Ms.
Gardiner, was so manifestly discredited that no reliance should have been placed
on her evidence as her credibility was totally destroyed. Counsel submitted that
no convincing explanation was given by the witness, Ms. Gardiner, to explain her
lies and inconsistencies set out by the learned Magistrate in her decision.
Counsel contended that the prosecutions case was based solely on the
uncorroborated evidence of Ms. Gardiner. Taken at its highest, that evidence
was tenuous that the learned Magistrate ought not to have relied on it.
16.

It is noteworthy that the appellant was convicted on a summary trial. The

Magistrate was the judge and jury.

17.

The evidence of Ms. Gardiner in this matter stood by itself, uncorroborated

by any other evidence, forensic or otherwise. This was also the finding of the
trial Magistrate.
18.

The importance of corroboration especially in sexual offences has been

emphasized in a number of cases (see OReilly [1967] 2 All. ER 766}. In

Neville Benson Henry and anor Vs. R. (1969) Vol 53 Crim. App. R. 150 the
Court of Appeal in England ( Lord Justice Salmon, Lord Justice Fenton Atkinson
and Mr. Justice Milmo) said that a trial judge in a jury trial should use clear and
simple language that will without a doubt convey to the jury that
--- in cases of alleged sexual offences it is really
dangerous to convict on the evidence of the woman
or girl alone.

This is dangerous because human

experience has shown that in these courts girls and

women do sometimes tell an entirely false story which

is very easy to fabricate, but extremely difficult to
refute.

Such stories are fabricated for all sorts of

reasons, which I need not now enumerate, and

sometimes for no reason at all.

The Judge should

then go on to the jury that, bearing that warning well

in mind, they have to look at the particular facts of
the particular case and if, having given full weight to
the warning, they come to the conclusion that in the
particular case the woman or girl without any real
doubt is speaking the truth, then the fact that there is
no corroboration matters not at all; they are entitled to
convict.
(at page 153 154) (Emphasis Provided)
19.

In this case where the trial was by a Magistrate alone acting

as the

assessor of the facts, the salient facts which should bear on the Magistrates
mind were - (1)At the time of the alleged offence Ms. Gardiner was 15 years of
age.

She was 17 at the trial.

(2)

Ms. Gardiner was not consistent in her

statements with regard to the alleged offences. At first she had denied having
sexual intercourse with the appellant. She said she had sexual intercourse with
another man not the appellant. (3)Under cross examination she admitted that
her testimony to the court was not what she had told the police in her statements
dated 24th August, 2004 and 19th January, 2005.

She admitted that in the

statement of 24th August, 2004 she told the police that the last time she had sex
with the appellant was in July, 2004. She admitted that some of her evidence
regarding the alleged events of the 25th July, 2004 was not recorded in either of
the two statements given to the police. (4) She admitted also that she had told
her parents initially that the appellant did not have sex with her and that there
was nothing going on between the appellant and herself.

20.

The issue that arose therefore was whether the learned Magistrate was

justified in relying on the uncorroborated evidence of Ms. Gardiner which

evidence was proved to be inconsistent and discredited.
21.

In their guidance in 1962 given to justices in England sitting as

Magistrates with regard to no case submissions by counsel the Queens Bench

Division (Lord Parker C.J., Ashworth and Fenton Atkinson JJ.) said:

LORD PARKER, C.J.: Those of us who sit in

the Divisional Court have the distinct impression that

justices today are being persuaded all too often to
uphold a submission of no case. In the result, this
court has had on many occasions to send the case
back to the justices for the hearing to be continued
with inevitable delay and increased expenditure.
Without attempting to lay down any principle of law,
we think that as a matter of practice justices should
be guided by the following considerations.

submission that there is no case to answer may

properly be made and upheld: (a) when there has
been no evidence to prove an essential element in
the alleged offence; (b) when the evidence
adduced

by

the

prosecution

has

been

so

discredited as a result of cross-examination or is

so manifestly unreliable that no reasonable
tribunal could safely convict on it.
Apart from these two situations a tribunal
should not in general be called on to reach a decision
as to conviction or acquittal until the whole of the
evidence which either side wishes to tender has been
placed before it. If, however, a submission is made
that there is no case to answer, the decision should
depend not so much on whether the adjudicating

tribunal (if compelled to do so) would at that stage

convict or acquit but on whether the evidence is such
that a reasonable tribunal might convict.

If a

reasonable tribunal might convict on the evidence so

far laid before it, there is a case to answer.
[1962] 1 AllE.R. 448
(Emphasis Provided)
22.

In R. v. Galbraith, 73 Cr. App. R. 124 the Court of Appeal in England

(Lord Lane C.J., Peter Pain and Staurt Smith JJ) gave further guidance as to the
proper approach in circumstances when the judge sitting with a jury will stop a
case from going to the jury:

How then should the judge approach a

submission of no case? (1) If there is no evidence

that the crime alleged has been committed by the
defendant, there is no difficulty.
course stop the case.

The judge will of

(2) The difficulty arises

where there is some evidence but it is of a

tenuous

character,

for

example

because

of

inherent weakness or vagueness or because it is

inconsistent with other evidence. (a) Where the
judge

comes

to

the

conclusion

that

the

prosecution evidence, taken at its highest, is such

that a jury properly directed could not properly
convict upon it, it is his duty, upon a submission
being made, to stop the case. (b) Where however
the prosecution evidence is such that its strength or
weakness depends on the view to be taken of a
witnesss reliability, or other matters which are
generally speaking within the providence of the jury
and where on one possible view of the facts there is
evidence upon which a jury could properly come to

the conclusion that the defendant is guilty, then the

judge should allow the matter to be tried by the jury.
(per Lord Lane C.J. at page 127) (Emphasis
Provided)
23.

In R. v. Shippey [1988] Crim. LR 767, a case from the High Court sitting

at Sheffield, England, the facts were:

The defendant Shippey was charged alone with rape
and all three defendants were charged jointly with a
further rape on a different day of the same girl. The
prosecution case rested entirely upon the evidence of
the complainant and there was effectively little or
no corroboration. After the close of the prosecution
case submissions of no case to answer were made by
all defence counsel on the basis of Galbraith (supra)
namely that the evidence was so inherently weak
and inconsistent that no jury properly directed
could properly convict. The prosecution opposed
the application arguing that although there were
weaknesses and inconsistencies in the evidence
nevertheless there was evidence, which evidence
must be taken at its highest in accordance with
Galbraith and once that was done, it could not be
said that a jury properly directed could not properly
convict; there being evidence it was a matter for the
jury under limb 2 (b) of Galbraith to assess its
strength or weaknesses and accordingly the case
should go to the jury. The prosecution referred his
Lordship to the cases of R. v. Beckwith 81 C.L.R. 646
and Haw Tua Tua v Public Prosecutor [1981] 3 All
E.R. 14 at p. 19 and the article: submission of no case

to answer - some recent developments, 82 C.L.R.

558. [Emphasis Provided]
24.

After reviewing the authority of Galbraith, His Lordship found that he must

assess the evidence and if the witness evidence was self-contradictory and out
of reason and all commonsense then such evidence was tenuous and suffering
from inherent weakness.

He did not interpret the judgment in Galbraith as

intending to say that if there are parts of the evidence which go to support the
charge then no matter what the state of the rest of the evidence that is enough to
leave the matter to the jury. He found that he had to make an assessment of the
evidence as a whole. It was not simply a matter of the credibility of the individual
witnesses or simply a mater of evidential inconsistencies between witnesses,
although those matters may play a subordinate role. He found that there were
within the complainants own evidence inconsistencies of such a substantial kind
which he could not ignore and bearing them in mind he found that a jury properly
directed could not properly convict. Accordingly the submissions of the defence
were allowed and formal verdicts of not guilty directed.
25.

In this matter the inconsistencies in Ms. Gardiners evidence were so

glaring and her evidence so discredited as a result of cross-examination that her

evidence is so manifestly unreliable that no reasonable tribunal or jury properly
directed could properly convict upon it.
26.

In those circumstances it was the duty of the learned magistrate to stop

the case upon a submission of no case to answer being made and discharge the
appellant. It would appear in this case that that was not done. The appellant
was called upon for his defence, which he did.
27.

The appellant in his case denied the offences and presented a defence of

alibi which was not properly considered by the learned Magistrate. He called two
witnesses his girlfriend and his girlfriends mother who supported his alibi,
unchallenged.

The Magistrate in rejecting the defence offered her own

speculative comment to the effect that the witnesses might have been asleep at
the time when the offence was alleged to have occurred and for that reason they

10

could not be certain that the appellant was in their residence at the time of the
offence.
28.

The appellants defence revealed nothing to boost the case for the

prosecution.
29.

For the reasons given above we were of the view and agreed with the

submissions of counsel for the appellant that the appellant was wrongly
convicted and that the conviction was unsafe and unsatisfactory. We therefore
allowed the appeal and set aside the conviction and sentence.

_________________________________
The Hon. Mr. Justice Osadebay, J.A.

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