JAMAICA’S Court of Appeal has thrown out an application from a man serving time for raping a five-year-old who sought to have his conviction quashed on the basis that he had been convicted “without evidence of sexual penetration; and that the evidence adduced in support of any hint of sexual penetration was vague, unreliable, unexplained, and unsupported” , among other things.

The man, who was caught in the act by the child’s grandmother in the living room of their home, was convicted of the offence of rape in the Clarendon Circuit Court following a jury trial in December 2022, and was sentenced in January 2023 to the statutory minimum of 15 years’ imprisonment without eligibility for parole until he had served 10 years.

The man, whose name is being withheld to protect the identity of the child, however filed an appeal seeking to challenge his conviction, arguing a lack of evidence and that the verdict was unreasonable.

In filing further grounds of appeal in January this year the man contended that the trial judge erred by not acceding to the no-case submission made on his behalf.

In addition, he contended that the judge did not sufficiently instruct the jury, given the circumstances of the case, making it so that his trial was unfair.

The Appeal Court panel, after hearing the matter on March 2 and 3, said, “Having heard the submissions on these grounds from counsel for the appellant and counsel for the Crown, and having examined the relevant statutory provisions and the transcript of the trial, we conclude that the appeal must be dismissed.”

Said the panel, “[T]here was more than sufficient evidence from the complainant as to the element of penetration to go to the jury to determine whether the offence of rape had been committed. The child, who was eight years old at the date of the trial, was unsworn, but was found competent to give evidence having been found to be possessed of sufficient intelligence and having demonstrated an understanding of the duty to speak the truth.”

The panel pointed out that, “[I]n giving evidence, the child said that the appellant put his private part into her private part and that her private part is her vagina and his private part is his penis.

“There was no ambiguity in this evidence. There was no suggestion that the child did not know or understand the difference between ‘in’ as opposed to ‘on’. For the offence of rape, the slightest penetration is sufficient,” the panel declared.

“The child was found on her back with her shorts and underwear down by her feet and her blouse up under her breast with the appellant on top of her, with his underwear down by his knee and his penis out,” the judges of the appeal stressed.

The panel said, “[A]lthough there was no evidence that the child complained of pain, there was evidence of her distress as she was found under the appellant crying, and was crying whilst being bathed by her grandmother.

“Although the medical evidence was that the child’s hymen was not intact and there was no bruising, bleeding or swelling to the vaginal area, the child’s grandmother did see what she described as ‘a little water’ on the child’s underwear. The doctor gave various reasons as to what could cause a hymen to be broken, including but not limited to sexual assault, riding a bicycle, gymnastics, and so on. The doctor was asked whether there would have been additional findings on examination if the hymen had recently been broken. The doctor’s response was that it depended on many factors, such as the type of incident, the child’s age and size, and the type of force involved,” the court pointed out.

It also noted that, “[W]hen asked specifically what type of observation would be expected on examination of a five-year-old who was penetrated by an adult male, the doctor’s response was that the findings would vary [as] in one instance the hymen might be intact and there is nothing else, [while] in another instance the hymen might be broken with bruising or bleeding in the area.” In other instances, the doctor said, the hymen might be broken with no sign of injuries.

The Appeal Court, in examining the question as to what conclusion the doctor was able to draw from the child’s medical records to which the response was that no concrete conclusion could be drawn, said “The jury was entitled to accept that there was penetration even of a slight degree, bearing in mind the evidence that the grandmother entered the room at the point she did, and to accept that this was one case where there was no bruising, bleeding or swelling caused by the degree of penetration.”

The court declared that there was no miscarriage of justice on this ground while stating that, “the complaint that the judge merely gave the usual directions on inconsistencies and discrepancies but failed to point out to the jury any example of an inconsistency or discrepancy…was not sustainable”.

Said the judges of the Appeal Court in dismissing the petition, “In the light of the evidence accepted by the jury and the judge’s summation viewed as a whole, the original ground of appeal that the verdict is unreasonable, having regard to the evidence, is not sustainable. Therefore, there being no serious miscarriage of justice demonstrated, the conviction must stand and the court, therefore, makes the following orders: The appeal is dismissed. The conviction and sentence are affirmed. The sentence is to be reckoned as having commenced on the date on which it was imposed, that is, 25 January 2023.”