THEY were girls from a poor section of Kingston, sisters aged 15 and 16, when they were brutally raped, repeatedly, at gun and knife-point by a gang of men nearly seven years ago, on January 11, 1999. Court records identify the two girls only as ‘T’ and ‘N’, in accordance with laws governing rape and minors.

But they were destined to become part of legal history when their rapists opted to video-tape their crime, ostensibly for distribution and entertainment purposes later.

At end of the trial that began August 10, 1999 and ran for 13 days, presiding judge Justice Donald McIntosh would describe the sisters in glowing terms for their bravery.

“This court is of the view that they were and are honest witnesses, brave witnesses, witnesses of integrity and witnesses on whom this court can rely, on whose evidence this court can place confidence and that they are witnesses of truth.,” McIntosh said in his record of the trial.

The tape would later be used to disprove alibis proffered by the rapists.

The girls were subjected to anal, oral and vaginal sex, as well as what the trial judge described as “unnatural and perverse acts”.

One of the sisters was forewarned of her ordeal when she was asked, with a gun and knives pointed at her, by the man the court later referred to as ‘the ring master’: “Gal, you ever get ‘battery’ yet?”

The term battery refers to gang-rape.

T and N never reported their ordeal to the police, saying they had been threatened by their rapists.

Their traumatic experience was discovered by chance on January 16 when the police entered the residence of another man, not linked to the rape, on a different mission, and found what was a copy of the videotape.

The police approached the sisters at their stepfather’s house, took them to the Rape Investigating Unit for examination and to hear their story, and placed them in state care.

On January 23, the girls visited the scene of their ordeal with the police to point out their attackers. Their torn clothes and personal items were still on the property.

The policeman who found the videotape, Detective Corporal Dave Daley, would later testify that he recognised two of the rapists by their voices and facial features as he viewed the tape, and one by voice only, establishing identification.

Nine men were charged initially for the crime – though a transcript of the case said the girls were raped by about 11 men in the house – but only six were convicted.

Three had charges dismissed at the end of the trial, presided over by Justice McIntosh in the High Court Division of the Gun Court,

One of the rapists, Livingston Bent, had initially pleaded guilty; and five others were convicted on three counts each.

Nelson ‘Rexo’ Cummings, to whom the girls’ father had sent them on an errand and who was alleged to have facilitated the rape, had two of the three charges against him referred back to the Home Circuit Court. He was freed on count one.

The Sunday Observer had not ascertained the outcome of the referral up to press time.

The leader of the pack and the videographer of the crime, Lynden Levy, was sentenced by McIntosh to 150 years at hard labour, on three counts of 50 years each to run concurrently – meaning he would only serve 50 years.

His accomplices, Anthony Wallace, Winston Ferguson, Gairy Hylton and Patrick Evans, got 20 years each at hard labour on each count, with count one set to run consecutively to counts two and three, and counts two and three to run concurrently. In other words, they would serve 40 years each.

Three years ago, the case came up on appeal before Justices Downer, Panton and Smith, in which lawyers for the rapists attempted to have the Appeal Court rule that trial judge McIntosh had erred in accepting portions of the videotape as evidence, arguing that “the original was not in court and could not be accounted for” – a submission made by defence attorney Dwight Reece, who represented Levy, Ferguson and Hylton.

The other defence attorneys appearing were Earl DeLisser for Wallace and C J Mitchell for Evans.

But, senior deputy director of prosecutions Paula Llewellyn successfully counter-argued that Detective Daley had testified that the tape was kept in his possession and that no alteration was made, and that the girls had testified to the accuracy of the events on the tape,

Llewellyn, who was assisted by another crown prosecutor, Rochell Cameron, cited the Canadian case of The Queen v Alexander Nikolovski where the Supreme Court held in 1996 that videotapes could be used to establish innocence as surely as they could establish guilt, once it is proved that the tapes were not altered.

“A video camera records accurately all that it perceives and it is precisely because videotape evidence can present such clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime,” the Canadian court ruled.

Justice Smith who wrote the judgment of the Levy rape appeal ruling in mid-2002, following hearings on November 19-21, 2001 and May 16, 2002, also cited the 1987 case of Taylor v Chief Constable of Cheshire to establish that video recordings were acceptable as evidence for identification, and the 1982 case of Kajala v Noble to establish that a copy of an original tape was also acceptable by the court, once it satisfied the “best evidence” rule, meaning that it was the best available substitute.

The Court of Appeal also struck out the appeals made separately on grounds of discrepancies in the evidence, tainted identification, wrong identity, and bias on the part of the trial judge.

Trial judge McIntosh had in fact acknowledged in the record of the trial the existence of discrepancies, but explained it by repeating the observation of one counsel:

“Mr Bird did tell this court that he understand that this could be caused by the fact that because of feelings of shame, remorse, degradation that the witness having been so completely degraded and dehumanised might have blocked out this incident out of her mind because to recall would be to recall this subjugation which she suffered; the mental torment which she suffered and her subconscious would want to block.”

But the justices agreed with the submission, made on appeal, that the sentences were excessive.

At the conclusion of the case, they ruled against dismissing the rape convictions, but reduced the sentences to:

. Levy: 25 years on count one, and 30 years for counts two and three, to run concurrently, meaning he will serve 30 years

. Wallace, Ferguson, Hylton and Evans: 15 years on count one, and 20 years on counts two and three to run concurrently, meaning they will serve 20 years.

The sentences commenced on October 8, 1999.