The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal yesterday affirmed the conviction and 12-year sentence of a man who a Supreme Court jury unanimously found guilty of sexually assaulting a 13-year-old girl.

Livingston Miller, 56, appeared on his own behalf before Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott seeking leave to appeal his conviction and sentence concerning crimes committed between June 9 and 14, 2014.

Prosecutors alleged that Miller had anal, oral and vaginal sex with the 13-year-old girl at his apartment at Davis Street, Oakes Field in June 2014.

Miller denied the allegations and argued that the complaint was a fabrication because of a feud between adults which allegedly began because Miller refused to give the victim’s Jamaican mother $3,000.

Miller had filed his appeal eight days outside of the 21-day deadline and had to convince the panel of the prospects that his appeal would be successful if heard.

Miller’s hour of attempts to sway the court that his appeal had a merit in law were unsuccessful.

“Your first ground is that the trial judge erred in allowing the case to go before the jury? What was the evidence?” Dame Anita asked.

“She gave evidence that I had sex with her after her birthday in June,” the appellant said.

“How many times did she say you had intercourse with her?” the Dame Anita asked.

Miller said one occasion.

He sought to draw the court’s attention to the complainant’s testimony in which she said her birthday was actually in May and the time frame of the offence occurred in June.

Justice Isaacs, having looked at the trial transcripts, noted that the complainant testified of the incident actually occurring after her graduation from middle school.

“She alleges you had oral and vaginal sex with her?” Dame Anita asked.

Miller said “yes” and proceeded to read the complainant’s account of what transpired.

He also said his trial lawyer asked the complainant if she recalled being taken to the police station by her mother to file a complaint.

The appellant said that the mother of the complainant corroborated the girl’s testimony that the mother was not present in the room when the complainant gave her statement to police.

However, the appellate court said that the complainant’s statement to police was not exhibited at the trial.

Miller insisted that it was. However, he conceded that it was his lawyer who cross-examined the girl about her statement to police.

“Holding up a statement doesn’t mean it was entered into evidence,” Justice Isaacs said.

The appellate president agreed.

Justice Isaacs continued that while reference was made to the statement, “the actual physical document was not entered as an exhibit in the trial.”

“Your counsel used it to try and discredit the complainant on the basis that she was fabricating the evidence being told in court,” Justice Isaacs added.

Miller contended that he didn’t have a fair trial because the officer who took the complainant’s statement was not called to testify.

However, the argument was rejected because the statement was not relied on by the prosecution.

“Why do you say the judge was wrong to give the case over to the jury?” Justice Crane-Scott probed.

“You have two denials here and according to common law everyone is equal,” Miller answered.

Dame Anita asked Crown respondent Olivia Nixon if there was any medical evidence during the case aside from the child’s testimony and the mother’s testimony of a complaint being made.

Nixon said that a physician examined the complainant in July and found evidence of sexual activity.

“I know I didn’t do the crime and I still stand by that,” Miller stressed.

“That’s not for us to determine. We’re here to determine if you had a fair trial based on the law,” Dame Anita said.

Miller said it was his son who slept with the girl.

“Did you tell that to the jury?” Dame Anita and Justice Crane-Scott asked at the same time.

“I did,” the appellant said.

“What else did you tell them because the jury obviously did not believe you,” the appellate president said.

“The jury wasn’t paying attention,” Miller said.

Miller again stressed that it was suspicious that the police officer who took the statement from the complainant was not called to give evidence in the case.

“You had counsel at your trial, yes?” Justice Isaacs asked. Miller said yes.

“You could’ve called them as witnesses in your defence and based on the transcripts, your counsel cross-examined the prosecution witnesses vigorously. It boils down to you say, I say and by the verdict, the jury believed the complainant,” Justice Isaacs said. “It is for the jury to say who they think is telling the truth. For whatever reason, they believed the young woman’s story, they disbelieved your denials and they convicted you.”

“Truthfully, I don’t see much prospects of success on the appeal against conviction because we’ve looked through the transcripts and everything was done properly,” Dame Anita said.

The appellate president and Justice Crane-Scott also said the judge had warned the jury that it was easy for a complaint of sexual assault to be made.

On the issue of sentencing, Miller felt that the 12 years was unduly harsh.

While Ms Nixon was not called on to respond to the points argued by Miller concerning the conviction, she reminded the court that Miller actually faced up to life imprisonment for the conviction, notwithstanding it was his first offence.

She also cited the appeal of Dwight Bethell whose 12-year sentence was recently upheld by the appellate court for the same offence.

The judges ultimately rejected Miller’s application for an extension of time on the basis that it had no prospects of success.