COA says trial judge affected the merits of the case, putting “serious doubts” on safety of verdict
NASSAU, BAHAMAS — The Court of Appeal has ordered a new trial for a man convicted of incest and sentenced to 25 years in prison.
In their ruling, Justices Sir Michael Barnett, Roy Jones and Milton Evans determined that there were “serious doubts as to the safety of the verdict” as the trial judge erred in law and “clearly affected the merits of the case”.
The respondent, who was not named, alleged to police that she was sexually assaulted by a man on two separate occasions between January 2013 and June 2013; and January 2014 and December 2014.
The appellant, who was only referred to as ‘DC’ in the ruling, was charged in reference to the alleged 2014 incident.
He was convicted in November 2016 and appealed the decision in April 2017; however, it was not received into the court’s registry until May 1, 2017, and thus, “out of time by 10 days”.
However, the appellate court granted an extension of time to the appellant and proceeded to hear the appeal.
During trial, the defence sought for the period of time in 2013 to be considered as the accused was incarcerated at the time.
While the defence said it was a matter of credibility, the judge instructed the jury to disregard evidence given for that period of time.
The appellate justices said it was the wrong decision as the evidence relative to the 2013 alleged incident was relative to the case.
According to the ruling, the trial judge “erred in law when she deemed statements made to the police by the virtual complainant accusing the appellant of sexually assaulting her in 2013 as being irrelevant to the fact in issue, and therefore refused defence counsel the opportunity to test the credibility of the virtual complainant; thus substantially affecting the merits of the case, especially as credibility was [a] crucial factor.”
The justices also said the summing up of the trial judge was “unbalanced” as she “unfairly repeated the detailed account of the virtual complainants’ sexual assaults on seven separate occasions” during her summation, which was “clearly prejudicial to the appellant”.
The appellate court also determined the trial judge did not give a good character direction in reference to the propensity of the appellant to commit the offence; and labelled the sentence “unduly harsh and severe”.
The ruling read: “After hearing submissions from counsel we were satisfied that the appeal should be allowed and so we quashed the conviction and sentence of the appellant and ordered a retrial to take place as soon as possible. We at that time promised to provide the reasons for our decision which we do now.”
Attorneys Brendalee Rae and Marianne Cadet appeared for the appellant.
Linda Evans appeared for the Crown.