Security guard wins appeal against buggery conviction
A security guard, who was in 2019 convicted for sexually assaulting and buggering an eight-year-old boy described as “a slow learner”, was on Friday acquitted after the Appeal Court ruled that “the strength of the case presented by the prosecution was undermined by the obvious difficulties in eliciting evidence from the complainant”.
This even after the Crown in 2022 filed a notice of application for court orders to increase the sentence of the man who was sentenced to 10 years’ imprisonment at hard labour for the offence of grievous sexual assault and five years’ imprisonment at hard labour for the offence of buggery. The sentences were to run concurrently. That application was denied.
The appeal judges, in turning the man loose, pointed to areas of the boy’s testimony which were treated as inconsistencies by the trial judge, stating that these were variations that amounted to lying under oath.
“There can be no dispute that the learned trial judge quite properly identified the central issue in this case to be that of credibility. She gave the usual unexceptional directions to the jury to determine whether they believed the complainant based on their assessment of him. She failed to acknowledge that his admission of lying impugned his reliability to such an extent that it provided an evidential basis for a corroboration warning,” the panel of appeal court judges stated.
“The cumulative effect of the recognised deficiencies in the quality and content of the complainant’s evidence, together with the admitted lies, were such that the jury ought to have been invited to exercise caution in determining whether to accept the complainant’s evidence and the weight to attach to it,” the Appeal Court said further.
According to the court, “In the absence of such a warning, it cannot be said that the appellant received a fair trial and thus his conviction is rendered unsafe.”
“In the circumstances it is difficult to say that had the jury been properly directed they would inevitably have convicted the appellant,” the appeal judges said.
As to whether a retrial should be ordered the Appeal Court said “It is indisputable that sexual offences against the young and vulnerable in our society are prevalent. One overriding factor in this matter is the fact that the strength of the case presented by the prosecution was undermined by the obvious difficulties in eliciting evidence from the complainant. In these circumstances it would not be in the interest of justice to order a new trial.”
In allowing the appeal, the court ordered that “the convictions are quashed, sentences set aside, and a judgment and verdict of acquittal entered instead”.
Based on the testimony of the mother of the child who took the stand during the trial, the boy was between eight and 11 years old at the time of the incident and was 10 days short of his 15th birthday at the time of the trial.
The boy, in taking the stand, told the court that he had no idea what caused him to be there and admitted that he was unable to spell his last name, even though he was then a high school student. He also said he did not know his mother’s surname.
Asked whether he had something to tell the courtroom he said, “Miss, I get rape”, before going on to say the man, whom he knew for “one week” but did not know his last name, had raped him. According to the child, the man locked the door and drew the curtain, told him to pull down his pants and then sexually assaulted him, which caused bleeding from his buttocks.
He told the court that on the day in question he was in the man’s yard picking guineps when the man called him and asked him to purchase bread and butter for him. He said after that, the man told him to perform oral sex on him and then told him not to tell anyone. The boy said he did not know what the man meant when the man, using a vulgar colloquial term, instructed him to perform the act.
He said that was the only thing he did at that time.
The boy, under further questioning, could not say what on what part of the body he performed the act, nor was he able to show where on the body it was located, saying that his face had been covered with a pillow.
Asked if he knew where on his own body it was located he said “inna mi pants front”.
When initially asked if he saw the man in court the boy said no. Following another series of questions he told the prosecutor that his alleged abuser was “back a yuh”.
In further describing what the man had allegedly done, the complainant said he was lying on his belly on the bed and the appellant was behind him lying on his back. He said he shouted for help and someone he knew, who lived in another yard nearby, kicked off the door. At that time, he said, the appellant was in the house on the bed and he was under the bed. He told the court that nothing else happened after the door was kicked off.
Under cross-examination, however, the boy’s testimony varied from what he said in his evidence in chief. He, among other things, said he had not told the police that he had been tied up or that someone had kicked off the door when he cried for help.
Under probe from the attorney for the accused man, the boy, when asked if he was tied up said, “No sir.” Asked if he made up his story about his hands being tied he said, “No sir.” And asked if he knew what a lie was he said, “No.” He, however, maintained that the man had told him to perform oral sex and had placed his penis into his buttocks.
The child’s mother, who admitted that she knew the accused man, said she took her son to the Rape Unit at the Centre for Investigation of Sexual Offences and Child Abuse (CISOCA) and spoke to a policewoman there.
A guidance counsellor called by the prosecution told the court that the boy was “a slow student who may have had some learning challenges” but said the school he was attending at the time was “not equipped to diagnose him”.
The man, in an unsworn statement from the dock, denied touching the boy inappropriately. He said the boy, who was always picking guineps and playing football in front of his house with his brothers, had lied on him.
The sole witness called by the defence, a medical doctor who had examined the boy, said what he observed was “an intact anus” but that there was “slight farrowing”.
Under cross-examination, the medical doctor, however, agreed that a person could be penetrated in their anus and still have a normal anal tone. He explained that the presence of signs of funnelling in the anus was “usually a feature of chronic anal activity”. He said regular anal sex would be considered chronic. He also said the signs of farrowing that he saw “could have been caused by constipation as well as penetration with the penis”.
He further agreed that although he had seen no bruising, laceration, or scars on the anus of the complainant he was unable to say it had never been penetrated by a penis. He could not say absolutely that there had never been any penetration from the examination of the complainant.
Under re-examination the doctor said the probability he had come up with was that it was “unlikely that penetration had occurred”.