The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE SON of former Governor General Sir Arthur Foulkes has been granted $9,000 bail ahead of his retrial over allegations he sexually assaulted a 13-year-old girl entrusted to his wife's care six years ago.

Justice Gregory Hilton granted Joseph Foulkes $9,500 bail with one or two suretors yesterday ahead of his second trial over an alleged incident that is said to have occurred sometime between January and the latter part of June 2012.

Foulkes is required to report to Grove Police Station every Monday, Wednesday and Friday before 6pm as a part of his bail conditions. He is also not to interfere with any of the Crown's witnesses leading up to the retrial.

The Tribune understands a date for Foulkes' retrial has not yet been given; however, in quashing his conviction and sentence, the Court of Appeal previously ordered for him to be retried at an "early" date.

On March 11, 2015, a Supreme Court jury returned a 7-2 guilty verdict against Foulkes for unlawful sexual intercourse. He was sentenced to ten years in prison to run from the date of conviction.

Prior to the verdict, Foulkes pleaded not guilty to the single offence with which he was charged.

A notice to appeal against conviction and sentence was filed on his behalf on June 2, 2015. However, pursuant to Section 17 of the Court of Appeal Act, Foulkes had 21 days in which to give notice of appeal or of his application for leave to appeal - by April 1, 2015, therefore, he was some 61 days late in doing so.

Nonetheless, in March of this year, appellate Justices Stella Crane-Scott, Roy Jones, and Milton Evans, quashed Foulkes' conviction and sentence and allowed his appeal, before consequently remitting the matter to the Supreme Court for him to be retried at an "early" date.

Prior to that decision, Foulkes' attorneys Christina Galanos and B'Jorn Ferguson relied on nine grounds of appeal in a bid to satisfy the court as to why their client's extension of time application to appeal his sentence concerning the alleged 2012 incident should succeed.

Those grounds included, but were not limited to, that the trial judge erred when he permitted the Crown to ask a witness for the prosecution about an allegation levied against Foulkes of a similar nature, and that the judge erred when he did not declare a mistrial after conceding that he did not believe that any foundation was laid for the Crown to go as far as it did in questioning a witness for the prosecution about allegations of a similar nature levied against Foulkes.

However, the factors that ultimately proved crucial to the success of Foulkes' application were two of his nine grounds, as well as an admission by Assistant Director of Public Prosecutions Vernal Collie that Foulkes' matter should have effectively been declared a mistrial based on the evidence given at trial.

During the appeal hearings, Ms Galanos charged that before the Crown commenced its re-examination of the virtual complainant's aunt in the absence of the jury, it made an application pursuant to Section 29 of the Evidence Act to enter evidence of Foulkes' bad character on the basis that defence counsel asked their witness whether she was aware of Foulkes being accused of anything similar to the charge of unlawful sexual intercourse (to which the aunt's reply was no), and that they were aware that the Department of Social Services had to remove Foulkes' son from the home for a similar allegation.

Initially, the trial judge told the Crown he would not be prepared to allow prosecutors to embark on the line of questioning until he saw a report from the DSS. The Crown conceded that it did not have the report in its possession but intended to obtain it. However, the judge told the Crown he didn't understand why the prosecution would make such an application without being in possession of the report.

Nonetheless, the trial judge took the position that as defence counsel opened the door on the issue, the Crown would be permitted to pursue the line of questioning in re-examination.

Ms Galanos thus submitted that the trial judge erred in allowing that line of questioning because the Crown was relying on allegations and not a conviction, and should have not been allowed to proceed; there was no evidence before the Court at that time that Foulkes was present to refute the allegation, thus making it "hearsay"; and that it was more prejudicial than probative.

Regarding the latter ground, which Ms Galanos submitted was an extension of the former ground, it was contended that the trial judge ought to have declared a mistrial after the "extremely damaging and inadmissible evidence was canvassed before the jury by the Crown." She noted that the trial judge attempted during his summation to warn the jury not to consider the evidence in deliberating on a verdict.

However, Ms Galanos submitted that the damage had already been done and the trial judge was unreasonably "expecting the jury to perform a nearly impossible task".

Mr Collie, in response to Ms Galanos, noted at the time that upon the Crown's perusal of the evidence and the trial judge's summing up of the facts of the case, the Crown had some concerns relative to the lack of direction pertaining to the bad character reference, as well as the admissibility of hearsay evidence.

"Perhaps it might have been better for the judge to discharge the jury at that stage," he told the appellate court.

Mr Collie then suggested there was a good chance that some of Foulkes' grounds would have a good prospect of success, but he needed more time to properly file submissions in response to same, which would have meant an adjournment in the matter.

However, Justice Crane-Scott questioned Mr Collie for intimating that he would need an adjournment, stating that although he hadn't properly filed submissions concerning the substantive appeal, because he already conceded that a mistrial ought to have been declared, there would be no reason to delay the inevitable.

The appellate court ultimately moved to allow Foulkes' extension of time application to succeed, quash his conviction and sentence and allow his appeal.