Westmoreland man loses appeal against sexual assault conviction

A Westmoreland man, who was given two suspended sentences for indecent assault and false imprisonment for sexually assaulting a young woman from his community at his home, has lost his appeal to have his conviction quashed and his sentences set aside.

Michael Irving was appealing a nine-month prison sentence suspended for three years for indecent assault and six-month prison sentence suspended for a year for the other charge.

The victim had initially accused Irving of attempting to rape her, claiming he diverted home with her while driving her home. She also reported that he had locked her inside his home and forcefully kissed her during a June 2018 incident.

Irving was initially arrested and charged with assault with intent to rape, false imprisonment, and indecent assault, but, following a four-day trial, which commenced on July 7, 2020 in the Westmoreland Parish Court, was found guilty of indecent assault and false imprisonment.

He was subsequently sentenced in September 2020, but appealed his sentence and conviction a month later. However, the Court of Appeal dismissed the appeal following a hearing last November. The receipt of the court records in October last year accounted for the delay in hearing the matter.

In a recently published ruling, the appellate judges explained that the matter could not be heard as the appellant had not provided any clear ground/s of the appeal nor had taken any steps to put before the court a “clinical and meaningful grounds of appeal or other information, such as written submissions”.

Nine-month window

According to the judges, Irving had a nine-month window in which to amend his appeal after the Crown filed its submission objecting to the appeal on the basis that it was defective. The defects were that the appeal failed to set out the facts and points of law on which the appellant sought to rely in support of his appeal and that the single ground of appeal was formulated in very wide terms.

“There exists before us not one scintilla of information on which we could determine whether the appellant has good cause to be heard despite the defects in the process he utilised. Furthermore, there is no information before us as to the basis [on which] he wishes to impugn the convictions and sentences imposed by the learned parish court judge,” the judges said.

But Irving’s counsel, O’Neil Brown, argued that the defects under section 296(1) of the Judicature (Parish Courts) Act were not fatal as the appellant could have made an application to file supplemental grounds of appeal. However, he admitted that he was provided with necessary instructions from the appellant and was, therefore, unable to advance any useful arguments before the court.

The appellant had signed and filed a Criminal Form B1 seeking to appeal against his convictions and sentences. On page two of the B1 form, he indicated his grounds of appeal “that the verdict of the learned trial judge is unsupported by the evidence”.

To initiate the appellate process from the parish court, an appellant is required by the Judicature (Parish Courts) Act to notify the judge of his intention to appeal after the sentence is passed or lodge a written notice of appeal within 14 days of the sentence with the clerk of the court.

The Court of Appeal judges however accepted that the appeal was duly filed although the method used is more appropriate for matters in the high court.

According to the information presented during the trial, on June 9, 2018, the complainant was leaving a wake in Belvedere in the parish at 3:00 a.m. when Irving, who she has known all her life, offered to take her home.

But Irving diverted and took the complainant to his home, where he pulled her inside the house, locked the door and kissed her.

During the encounter, in which Irving tried to overpower the female and pull down her underwear, she managed to telephone her mother whose answer thwarted the attempt.

Irving, in letting the complainant go, warned her repeatedly “make sure you nuh tell”. But the complainant told her mother about the incident when she arrived home and the matter was reported.

But Irving, during the trial, gave evidence under oath denying the allegations.

His argument was that she willingly entered his home and made the first overture of kissing him and freely removed her underwear.

tanesha.mundle@gleanerjm.com