‘In the end, justice was done’

A security guard who spent four years in prison because of the failure of the presiding judge to give adequate warnings to the jury after the complainant, who was a child, had admitted to telling lies, may not be able to recover from the setback and damage to his reputation.

The Court of Appeal, in quashing the convictions of the appellant, Carl Anderson, last month and setting aside his sentence, emphasised the fact that the “cumulative effect of the recognised deficiencies in the quality and content of the complainant’s evidence together with the admitted lies were such that the jury ought to have been invited to exercise caution in determining whether to accept the complainant’s evidence and the weight attached to it”. The court also referred to the judge’s failure to treat a doctor as an expert witness.

“A significant feature of the complainant’s evidence was his admission to having said things in his evidence in chief that were not the truth,” the court held.

Anderson was convicted by a jury in March 2019 of sexual offence charges. The offences were alleged to have taken place on a day unknown between September 2012 and June 2014 on a boy between ages eight to 11 years. The judge sentenced him on June 5, 2019, to 10 years’ imprisonment for grievous sexual assault and five years’ imprisonment for buggery and ordered that the sentences were to run concurrently.

Anderson, who was represented on appeal by attorneys-at-law Keith Bishop and Janoi Pinnock, made an application for leave to appeal in July 2021 and argued on appeal in June this year that the judge failed to give adequate warning to the jury in light of the young age of the complainant at the time of the assault, major inconsistencies, inherent contradictions, admitted lies, along with the opinion and findings of the doctor.

Commenting yesterday on the outcome of the appeal, Bishop said he reviewed the transcript, and the attorney-at-law who represented Anderson at the trial did not make a no-case submission at the end of the Crown’s case.

“However, I would say that it is of utmost importance that the judge, who is regarded as supreme on the law, should include in the summation the relevant warnings and directions to assist the jury to arrive at the correct decision based on the proven facts. This case needed a warning to the jury in light of the evidence of the complainant and the medical doctor. The Court of Appeal did what it was required to do when it reviewed the evidence, summation, and submissions.

“In the end, justice was done and the appellant is happy to be a free man once more despite a setback and damage to his reputation, which he might not be able to reclaim,” Bishop said.

Following the sentence imposed on Anderson, the Crown had filed a notice of application for court orders in the Court of Appeal to increase the sentence of the appellant.

The complainant’s mother had testified at the trial that he was born on March 31, 2004, which meant that when the alleged offences took place, he was between eight and 11 years old. The complainant was 10 days short of his 15th birthday when he testified at the trial.

Unable to spell his last name

The Court of Appeal pointed out that given the nature of the complaint in the appeal, the evidence of the complainant had to be rehearsed in the manner and sequence it was given.

In giving his testimony, the complainant began by indicating that he was unable to spell his last name although he attended a high school. He said he did not know his mother’s last name, and he did not know why he was in court, and he did not know if anything had happened to cause him to be in court. He later said in court that it was the appellant who had “raped” him. The complainant said he did not know what a lie was or what it meant to say “it nuh go so”.

A guidance counsellor from the complainant’s school had testified that his perception of the complainant was that he was a child who was neglected and was crying out for help. He described the complainant as a slow student who may have had some learning challenges, but at the time, they were not equipped to diagnose him. There was a literacy specialist at the school and the complainant was in that class from September 2012 to June 2014.

A policewoman testified that the complainant and his mother made a report, a statement was recorded from the complainant, and he was examined by a doctor.

The complainant had pointed out Anderson on a video identification parade in October 2015.

Anderson gave an unsworn statement that the complainant was telling lies on him. He said he knew the complainant and his brothers and the complainant was always picking guinep and playing football in front of his (appellant) home.

The Court of Appeal, in delivering its judgment on November 24, emphasised that a significant feature of the complainant’s evidence was his admission to having said things in his evidence-in-chief that were not the truth. The learned trial judge was content to deal with the matter of him saying he was tied up as an inconsistency. The fact is that the complainant admitted that he had never told the police about the appellant tying him up because that did not take place. He was asked specifically whether the “tying up happen”, and he responded no. Yet he said he did not make it up and that he did not know what a lie was, the court said.

In re-examination, despite the efforts of the prosecutor to get an explanation for why he said the appellant had tied him up, he could offer none. The court said the other area in which the complainant admitted to not speaking the truth was in relation to his evidence when he said someone named Fletcher kicked off the door to the appellant’s house when he was being sexually molested.

“There can be no doubt that the learned trial judge quite properly identified the central issue in this case to be that of credibility. She gave the usual unexceptional directions to the jury to determine whether they believed the complainant based on their assessment of him. She failed to acknowledge that his admission of lying impugned his reliability to such an extent that it provided an evidential basis for a corroboration warning. The cumulative effect of the complaint’s evidence together with the admitted lies were such that the jury ought to have been invited to exercise caution in determining whether to accept the complainant’s evidence and the weight to attach to it.

“In the absence of such a warning, it cannot be said that the appellant received a fair trial, and thus his conviction is rendered unsafe. In the circumstances it is difficult to say that had the jury been properly directed, they would inevitably have convicted the appellant,” Justice Patrick Brooks, president of the Court of Appeal, Justice Paulette Williams and Justice Marcia Dunbar Green ruled.

Expert witness

The court found also that there was merit in the appellant’s appeal that the doctor who testified at the trial was not identified by the judge as an expert witness. Although he testified for the appellant, he still was to be treated as one whose special knowledge and experience in such matters could be of assistance to the court and whose primary function was to assist the jury in arriving at a verdict. The judge did not invite the jury to have regard to the opinions based on the doctor’s findings, the court held.

The doctor had said that it was unlikely that penetration took place. He also admitted that given the time that elapsed between the time the penetration was alleged to have occurred and the examination, there was nothing to suggest that something happened or did not happen. The equivocal nature of his evidence meant that it could have assisted either the case for the appellant or for the Crown.

However, the court said in the circumstances, the judge’s failure to give the required appropriate directions in relation to the expert witness was not fatal and in itself did not result in a miscarriage of justice.

In its conclusion, the court ruled that “the learned judge erred in her treatment of the expert witness. Although the learned trial judge had a discretion to give a corroboration warning, the circumstances of this case required that the jury be warned to exercise caution in respect of the complainant’s evidence”.

The Crown was represented by Crown Counsel Kimberli Dell-Williams, Christina Porter, and Katrina Watson.

editorial@gleanerjm.com