The Tribune

By LYNAIRE MUNNINGS

Tribune Staff Reporter

lmunnings@tribunemedia.net

THE Court of Appeal has dismissed an application by Vakeito Melkeva Ferguson to extend the time to appeal his conviction for unlawful sexual intercourse with his girlfriend’s 13-year-old daughter, ruling that the proposed appeal had “no realistic prospects of success”.

The court found that Ferguson filed his notice of appeal approximately seven months late and failed to provide a satisfactory explanation for the delay. Ferguson was convicted on February 1, 2024, of one count of unlawful sexual intercourse involving the teenager, who was under his care at the time. He was later sentenced to ten years in prison by Supreme Court Justice Guillimina Archer-Minns.

The prosecution alleged that the incident occurred in March 2021 at the girl’s home while her mother was at work. The complainant testified that Ferguson held her down, covered her mouth, and raped her in her bedroom. She later disclosed the incident in a letter to her biological father.

Although Ferguson originally faced three counts relating to alleged incidents in March, April and May 2021, the trial judge directed verdicts of acquittal on two counts, leaving the jury to consider a single allegation said to have occurred in March 2021.

The jury returned an 8-1 majority guilty verdict. Under the Court of Appeal Act, Ferguson was required to file his notice of appeal within 21 days of sentencing; however, the notice was not filed until January 2025.

Ferguson argued that the delay resulted from a lack of funds and the need to obtain court transcripts before proceeding. However, the court rejected those explanations, saying that a basic notice could have been filed without transcripts and noting that Ferguson had been advised of his appeal rights during sentencing.

The court also found no merit in Ferguson’s proposed grounds of appeal, which alleged that the conviction was unsafe, that material irregularities occurred during the trial, and that prejudicial evidence had been improperly admitted.

Ferguson claimed there were significant inconsistencies in the complainant’s evidence, particularly regarding where she was living at the time of the alleged incident and the exact date it occurred. He also pointed to the absence of physical injuries in the medical examination and alleged contradictions in witness testimony.

However, the court deemed that the trial judge properly addressed those issues in her directions to the jury. The court also found that the complainant, who was 13 at the time, gave “vivid evidence” about the incident and stood up to cross-examination on the central allegations.

The judges also noted that the indictment covered a broad period in March 2021 and was not confined to a single date, making it plausible that the complainant could have been mistaken about the exact timing.

The court further ruled that the inconsistencies highlighted by the defence were matters for the jury to assess as the “triers of fact”.

Ferguson additionally argued that the trial was unfair because a police witness referred to the complainant as “the victim” during testimony, allegedly creating sympathy and bias.

The Court of Appeal rejected that claim, finding that the references were brief, non-inflammatory and effectively neutralised by the trial judge’s balanced summing up to the jury.

The judges also dismissed complaints about a short adjournment granted during the trial, describing it as a routine procedural matter that caused no prejudice.

Another ground of appeal challenged the admission of evidence relating to the complainant’s claims of prior physical abuse. However, the court ruled that the evidence formed part of the complainant’s clinical history and was relevant to allegations that Ferguson threatened her after the assault.

The judges also noted that the evidence had been admitted at trial without objection and was later relied upon by the defence to challenge the complainant’s credibility. In dismissing the application, the court said allowing the appeal to proceed would prejudice the Crown, the complainant and the administration of justice.