The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal has affirmed the conviction and 12-year sentence of a man who a Supreme Court jury found guilty of sexually assaulting a minor and aiding her into a forced abortion.

Dwight Bethel, 43, stood trial in October, 2014, before Justice Vera Watkins on two counts of unlawful sexual intercourse and abetment to abortion concerning the crimes committed between 2008 and 2013.

Bethel denied the accusations when interviewed in police custody and during his trial. However, the jury believed the complainant’s testimony that Bethel began molesting her in 2008 when she was 11.

The complainant said she did not tell her mother what was happening because she was afraid. The teen said she told Bethel she was carrying his child in June, 2013, and he took her to a clinic four months later to terminate the pregnancy.

However, the operation was halted by her mother’s calls inquiring as to her whereabouts. As a result, she had to pass the foetus at home and wrap it in a plastic bag as directed by Bethel before he came to collect it.

The alleged abuse was revealed and reported to police later that day when the girl’s mother took her to the Princess Margaret Hospital, where she was diagnosed and treated for an incomplete septic abortion.

The jury unanimously convicted Bethel and in February, 2015, Justice Watkins imposed a 12-year sentence for the two counts of unlawful sexual intercourse and seven years for abetment to abortion to take effect from date of conviction.

Bethel and his appellant lawyer, Murrio Ducille, challenged the conviction on the basis that the judge was wrong to not allow Bethel’s trial lawyer to question the girl concerning her sexual history.

The appellate court, in a unanimous decision handed down on Thursday, dismissed the appellant’s challenge  with Justices Jon Isaacs, Stella Crane-Scott, and Roy Jones rejecting the argument.

However, the court was split 2-1 concerning section 34 of the Evidence Act.

“There were two hurdles the appellant had to surmount before he could be allowed to ask the virtual complainant questions related to her sexual encounters with anyone other than the appellant,” Justice Isaacs said.

“First, were the questions relevant to the issues joined in the trial between the Crown’s case and the appellant’s case? Second, would it be unfair to deny him the opportunity to ask the questions?

"The exchange between defence counsel and Watkins, J shows quite clearly that the two questions he proposed to ask of the virtual complainant were of no relevance to the issues joined between the Crown’s case and the appellant’s case.”

“Counsel failed, therefore, to surmount the first hurdle; as such there was no need for the judge to consider whether he had surmounted the second hurdle although she did do so,” Justice Isaacs said.

On the issue of section 34 of the Evidence Act, Justice Isaacs said: “It is clear that it was Parliament’s intention to provide protection to victims of unlawful sexual intercourse.”

“Unlawful sexual intercourse is in essence a rape offence as it is sexual intercourse with a minor who by law cannot consent to the act. To conclude that unlawful sexual intercourse is not 'a rape offence', especially in light of Parliament’s decision not to define the same within the Act, makes, in my view, a mockery of the provision."

Justice Crane Scott, on the rape argument, stressed that “it is undeniable that the purpose of section 34 is to protect a complainant who is testifying in a trial involving 'a rape offence' from being questioned, without the leave of the court, about a sexual experience with a person other than the accused where the particular question or the proposed line of cross-examination merely goes to credit.

“Parliament has also provided in subsection (2) of section 34, a procedural mechanism whereby upon application to the court by or on behalf of an accused person, the court, in the absence of the jury, for the purpose of exercising its discretion to grant or deny leave, inquire firstly, into the relevance of the evidence to be adduced by the proposed question or line of cross-examination; and secondly, whether it would be unfair to the accused to refuse to allow the evidence to be adduced or the question to be asked.

“Given the paucity of the information which had been placed before her, the judge could not be faulted for concluding that the cross-examination proposed by Defence Counsel had simply sought to discredit the complainant in the eyes of the jury and should be disallowed,” Justice Crane-Scott added.

She further noted that Parliament “evidently did not consider it necessary for purposes of section 34 to define the expression 'a rape offence' and it cannot be assumed that Parliament made a mistake merely because a definition was not provided”.

“In my view, the expression is not inherently unclear or ambiguous and in the absence of a definition we are required to look to the natural and ordinary meaning of the words for the true meaning of the term. The word 'rape' is defined in the Merriam-Webster dictionary broadly to mean 'unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against the will usually of a female or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception'.

“Giving the word 'rape' in its natural and ordinary meaning, I am satisfied that the expression 'a rape offence' in section 34 is intended to cover offences within the broad spectrum of ‘rape’, rather than the narrower, more restrictive definition found in section 3 of the Sexual Offences Act to which no express reference is made,” Justice Crane-Scott found.

Justice Jones, in his dissent on the issue of section 34, said that the trial judge’s statement “cannot be sustained for two reasons”.

“First, it is a non-sequitur. Although sexual intercourse is a common feature to both offences, the difference between 'unlawful sexual intercourse' and a 'rape offence' is primarily the requirement in rape that sexual intercourse took place without consent, or with consent obtained by force, fear or fraud.

"Second, section 34 of the Bahamas Evidence Act, Chapter 65 which came into being in March, 1996, is in pari materia with section 2 of the UK Sexual Offences (Amendment) Act 1976, enacted twenty years earlier,” Justice Jones noted.

“However, unlike The Bahamian Evidence Act Chapter 65, which presented no definition of a 'rape offence', the UK statute in section 7 defined a 'rape offence' as 'any of the following, namely rape, attempted rape, aiding and abetting, counselling and procuring rape or attempted rape, incitement to rape, conspiracy to rape and burglary with intent to rape'. In my view then, Watkins J, could not properly restrict the appellant’s cross-examination under Section 34 of the Bahamas Evidence Act Chapter 65 since the appellant was not charged for 'a rape offence' but for unlawful sexual intercourse under s.14(1) of the Sexual Offences and Domestic Violence Act Chapter 99.”

That was where the dissent ended.

Justice Jones, however, agreed with his colleagues that questions to witnesses in a trial “must be relevant to an issue in the case”.

“Whether the complainant had sexual intercourse with another person can, in my view, be relevant to the issue of whether she had sexual intercourse with the appellant. It all depends on the way the case is being presented to the court. It is also relevant to the complainant’s credibility,” he added.

“However, in this case, the questions foreshadowed by the appellant's counsel at the trial did not seek to discredit the complainant's evidence or challenge her credibility in any way. The questions proposed were plainly irrelevant either to the issue before the jury in the trial or to credibility of the complainant.

“They were therefore inadmissible and the judge below was right to prevent counsel for the appellant to cross-examine the complainant using them. From this it must follow that the verdict of the jury is not unsafe or unsatisfactory," Justice Jones concluded.

Stanley Rolle represented Bethel at the trial while Algernon Allen II prosecuted the case.

Garvin Gaskin, director of public prosecutions, Erica Duncombe, Eucal Bonaby and Joel Seymour were the Crown respondents in the appeal.

The appellate court’s full judgment, which was rendered on Thursday and published on Friday, is available on the appellate court website.