The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has ordered a retrial for a man previously convicted and sentenced to 15 years in prison for allegedly having sexual intercourse with a boy as well as allegedly encouraging that boy to commit sexual acts with another boy.

Appellate Justice Stella Crane-Scott, in a written ruling, ordered the appellant, referred to only as “SS” in the judgment, be retried in the Supreme Court “at an early date” after quashing his 15-year sentence for the illegal sexual acts he allegedly committed between December 2009 and December 2011.

In the ruling, the appellate judge sided with the submissions of the appellant through his counsel, that the trial judge, Senior Justice Stephen Isaacs, failed to give an “adequate corroboration direction” to the jury regarding the circumstances of the case.

Thus, she said, she is satisfied the trial judge’s corroboration direction was “woefully inadequate” and “amounted to an unreasonable exercise of the judge’s discretion”.

According to the ruling, the appellant was previously charged over allegations that sometime between December 2009 and December 2010, he purposely encouraged the older boy, aged ten at the time, to commit sexual acts with the younger one, age six at the time, and that sometime between December 2010 and December 2011, he had sexual intercourse with the then ten-year-old.

The accused pleaded not guilty to both offences. Nonetheless, on November 19, 2015, a jury convicted him of both offences and subsequently sentenced him to 15 years on each count to run concurrently from the date of his conviction.

A notice of appeal was filed against his conviction and sentence on November 24, 2015. Following a change in legal representation, the grounds of appeal were amended on January 16, 2017, and the appeal proceeded to a substantive hearing on January 31, 2017, on the basis of the amended grounds.

Justice Crane-Scott noted in the ruling that at the hearing, SS’s attorney abandoned both grounds one and three, and his submissions thus proceeded on the basis of the six remaining grounds. However, she said it was unnecessary to “discuss” grounds four, five, six or eight, as she said grounds two and seven “will completely dispose of the appeal”.

According to the ruling, ground two stated that the trial judge erred in law when he failed to give an adequate corroboration direction having regard to the circumstances, while ground seven stated that the verdict was unsafe and unsatisfactory having regard to the circumstances of the case.

Regarding ground two, SS’s attorney Murrio Ducille complained that the trial judge erred in failing to give an adequate direction to the jury regarding the particular circumstances of the case, which he said were firstly that it was a sexual case, and secondly that the case was based upon the “uncorroborated evidence of a child complainant”.

Mr Ducille further submitted that two Crown witnesses had, in the course of their testimony, both expressed “blatant animosity towards the appellant”.

The ruling noted that while Mr Ducille accepted that corroboration is not required to secure a conviction for either offence, and further conceded that the trial judge did warn the jury about the danger of convicting on the uncorroborated, or unsubstantiated evidence of the child, the attorney contended that a “fuller, more robust warning” was warranted given the sexual nature of the case, as well as the animosity towards the appellant.

In particular, Mr Ducille complained that given the circumstances of the case, the judge should have warned the jury of “the special need for caution in relation to the evidence of the appellant’s ex-wife, as well as that of the child complainant, both of whom were witnesses whose evidence could have been tainted by what, he termed, an improper motive”.

Thus, appellant’s attorneys submitted that in view of the inadequacy of the warnings and the other “misdirection and irregularities” identified in other grounds of appeal, the jury’s verdict was thus “unsafe and unsatisfactory” and that their client was not afforded a fair trial in contravention of Article 20(1) of the Constitution.

At the trial, the Crown’s case against SS was based primarily on the oral testimony of a child complainant, called “Y” in the ruling, who was the younger of the two boys. According to the evidence, Y was ten years old at the date of the trial and was six years old on December 2010.

Regarding Mr Ducille’s submissions that the evidence led during trial could have been tainted by an improper motive, Mr Ducille referred to a testimony at page 73 of the record which he suggested established that the mother of the two boys was a witness “who harboured a grudge towards the appellant” and in “respect of whom the judge ought to have given a stronger warning to the jury”.

In deliberating on a disposition to the matter, Justice Crane-Scott noted in the ruling that apart from that particular excerpt, she was “satisfied” from a review of the mother’s evidence that she was a witness who “still harboured negative feelings” towards the appellant, all of which Justice Crane-Scott said “played out in the court below and in full view of the jury”.

Justice Crane-Scott also said she was “completely satisfied” that the evidence led during trial established that both Y and his mother were witnesses “who could have been motivated by improper motives” and who “had been shown to bear the appellant some grudge or ill-will”.

Thus, she said she is satisfied that the trial judge’s corroboration direction was “woefully inadequate” and “amounted to an unreasonable exercise of the judge’s discretion”.

Regarding ground seven, Justice Crane-Scott said based on her “foregoing review of the evidence” and her views on the “inadequacies” of the trial judge’s direction, it is “not difficult to see why, in the absence of a more robust corroboration direction and warnings, I am left with lurking doubts about the safety of the appellant’s conviction”.

“The jury were faced with resolving the central issue in the case, namely, a clash of credibility between a ten-year-old child and the appellant, both of whom had given sworn testimony in the court below,” the ruling said. “Given the nature of the case, without adequate corroboration directions and warnings, it is impossible to say that no actual miscarriage of justice has occurred.

“Put another way, it is impossible to conclude with any degree of confidence that even if a proper direction were to have been given, the jury would inevitably have convicted. In my view, the appeal also succeeds on ground seven.”

On the issue of whether or not to order a retrial, Justice Crane-Scott said in the ruling that she took into consideration the “expense and length of time” that ordering a new trial might involve, but does not anticipate that a retrial, if ordered, would last longer than five working days.

She also said she took into consideration the “ordeal” the appellant would have to undergo should a retrial be ordered, but said in the instance the words of Lord Diplock are applicable: “I think it is in the interest of the public, the complainant and (the appellant himself) that the question of guilty or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.”

“In summary, and for all the above reasons, I would allow the appeal, quash the appellant’s convictions and the associated sentences and order that the appellant be retried in the Supreme Court at an early date,” the ruling said.

COA President Dame Anita Allen, as well as COA Justice Jon Isaacs, agreed with the decision.