Man freed of incest over trial judge error

A man who was convicted in 2017 of seven counts of grievous sexual assault and two counts of incest has been freed by the Court of Appeal because of the trial judge’s error in the directions to the jury.

The prosecution had asked for a retrial, but the court, in handing down its decision this month, said that that action would not have been appropriate.

The complainants were the appellant’s two daughters, who were 18 and 14 at the time of the trial.

The elder daughter said the first assault in which she had been reportedly victimised took place between May 2005 and 2006. Evidence was given that the other offences happened between May 2014 and December 2015.

Sworn testimony was given by the appellant, denying the allegations. He said the complainants were lying and that their motive was in retaliation to his attempts to curb his elder daughter from her immoral lifestyle. He charged that the other daughter was following suit.

By a majority decision, he was convicted of the offences and sentenced to 20 years’ imprisonment and ordered to serve 12 years before eligibility for parole.

Attorney-at-law Terrence Williams, who represented the appellant, argued several grounds of appeal. He submitted that the trial was a nullity and pointed out that the judge misdirected the jury.

The prosecution conceded that the claim of grievous sexual assault, as alleged in count one of the indictment, was not an offence at the time of the alleged incident and was only created by the Sexual Offences Act of 2009.

The offence was allegedly committed between 2005 and 2006.

Williams had argued that the trial judge erred in failing to direct the jury not to rely on the evidence of each virtual complainant to support the credibility of the other. He also warned the jurors of the danger that the evidence had been contaminated by their out-of-court contact.

LUMPING COMPLAINTS

Williams said the judge further erred in “lumping” the complainants together and suggesting that the case involved the two of them against their father.

Prosecutors Natalie Malcolm and Yanique Taylor-Campbell, in response to the submissions, highlighted that the judge gave a specific direction in relation to each count of the indictment and the date or period of each offence was alleged to have been committed, the ingredients of that offence, and the possible verdicts.

The prosecutors admitted that the learned judge did not give a direction to the jury that the evidence of one complainant could not support the allegations of the other and vice versa. They submitted that whereas such a direction would have been desirable, the omission to give it in clear terms was not fatal to the conviction.

“In the applicant’s case, it is not disputed that there are glaring similarities in the evidence of the complainants which would have been noted by the jury. It is, therefore, precisely the risk of the natural assumption by the jury that the evidence of each complainant could support the evidence of the other, which provides the rationale for a direction, the objective of which is to disabuse the jury of their inclination to so find,” the court ruled.

The appeal panel comprised Justices Frank Williams, Carol Edwards, and Kissock Laing (acting).

The court said it accepted the indication of the prosecutors that the passage of time has not negatively affected the availability of the witnesses and that a retrial was possible.

Commenting further, the court pointed out that there were cases in which a retrial was ordered despite considerably longer periods of delay but those matters turned on particular circumstances.

“In the case before us, we have placed due weight on the fact that the applicant has spent approximately five calendar years in custody,” the court said.

“We have also considered the interest of the complainants. The transcript of the trial suggests that recounting the allegations of which they spoke must have been a traumatic experience for them, being teenagers as they then were. One can reasonably assume that it would probably be similarly traumatic for them to have to endure that experience again even though they are older.

Those considerations led to the judges’ conclusion that an order for a retrial would not have been appropriate.

The court agreed with the submissions by Williams that the case was not a particularly strong one and that the jury did not reach a unanimous verdict.

“Furthermore, the task of the prosecution will be made more difficult by the fact that even if a retrial were to take place relatively quickly, at least eight years would have passed since the first offence is alleged to have taken place,” the judges held.

“In assessing the effect that the retrial will have on the applicant, the passage of time is an important consideration. It may also have implications for the applicant’s constitutional right to a fair trial within a reasonable time,” the court ruled.

The court, however, noted that the offences were, without question, quite serious and that the offence of grievous sexual assault, in particular, was prevalent in the society.

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