Wilkie Arthur
Freelance Court Correspondent
It was before a three justices of the High Court of Appeal panel: The Hon. Mr Justice Adderley, JA, President (Ag.) (Presiding); The Hon. Madam Justice Cornelius Thorne, JA and the Hon. Mr. Justice Hylton, JA.
Appearances were: Mr Oliver Smith K.C for the appellant, LOPEZ KENO WILLIAMS and Ms Nayasha Hatmin for the respondent or the Office of the Director of Public Prosecution (DPP).
The appeal was heard on January 15th, 2024 and a decision handed down on February 29th, 2024.
The issues raised in the appeal by King’s Counsel Smith and challenged by the Crown’s Senior Counsel, Mrs Hatmin were that of Sexual Assault by Penetration. It was an appeal against Conviction and Sentence; Constitutional Rights of the appellant; the Right of Review of Conviction or Sentence; the right to a fair hearing; incomplete trial transcript; the effect of an incomplete transcript and the final issue was whether an
incomplete transcript constitutes a deprivation of the Appellant’s Constitutional Rights.
Local and international previous high court cases were left for the Court’s consideration such as:
– Evon Jack v R [2021] JMCA Crim 31;
– Treverson Saunders v Regina;
– Lincoln Smith v Regina (CR-AP 7 of 2015; CR-AP 28 of 2015) [2017] TCACA 4 (1 December 2017).
The court outlines that they are aware that sexual abuse of children plagues our societies. Cases involving sexual abuse are particularly sensitive because of the recognised vulnerability of the complainants and the potential loss of freedom and reputation of the accused.
The prosecution and adjudication of such matters are rife with legal difficulties which the courts must carefully negotiate. The most careful handling of the case must be taken by the State at every stage to protect the rights of both complainant and accused.
The facts of the case as were laid out.
On January 17th, 2023 Keno Williams, the appellant, was convicted of one count of Sexual Assault by penetration. He was sentenced to a four-year term of imprisonment.
He appealed his conviction and sentence.
The case for the Crown was that the appellant was well known to the
complainant, who was 14 years old at the time the (alleged) offence took place. A series of WhatsApp messages were exchanged between them, in which the
appellant importuned her with request for sexual activity in return for money, the alleged victim had requested.
The Complainant saved some of the messages on her phone and
took screenshots of others. The Crown’s case continued that she later sent these screenshots to another close friend. On the date of the offence while the complainant was babysitting the child of the appellant’s girlfriend, the appellant pushed her up against a wall and sexually assaulted her. Apart from her friend to whom she sent the WhatsApp messages and confided the incident, she told no one until she had an argument with her mother, to whom she then revealed the assault.
The appellant’s defence was a total denial, asserting that the WhatsApp messages were a fabrication made to a proxy account set up by the complainant, and that the sexual assault never happened.
As in most sexual offence cases, the primary witness was the complainant, the 14-year old girl.
The hon court of appeal JUSTICES then mentioned the appellant’s grounds of appeal filed. The original grounds of appeal were filed on March 22nd 2023 and amended by new Counsel on 27th December 2023. The amended grounds of appeal are:
Ground 1-
Incomplete and inadequate trial transcript; there were missing sections of the evidence of witnesses as to material facts, as well as the absence of sections of the trial judges (sic) summation to the jury. Such lacuna or gaps in information constitutes a breach of the right of the appellant to have adequate time and facilities for the preparation of his defence (appeal) as guaranteed under section 6(1) (c) of the Turks and Caicos Islands Constitution Order 2011.
Further the incompleteness and inadequacy of the trial transcript, as an example, the absence of the evidence in chief of the virtual complainant, further constitutes a breach of the right of the appellant to have a copy of the record of the proceedings made by
or on behalf of the court, as guaranteed under the said section 6(3) of the Turks and Caicos Islands Constitution order 2011.
The cumulative effect of the several cited instances of missing transcripts and the multiplier inadequacy, results in the denial of the constitutional rights set out above and as such the appellant has been, is being an is likely to be denied due process contrary to the Constitution.
Ground 2-
Admissibility of Computer-Generated Evidence
The learned trial judge erred in allowing the photographs of screenshots evidence.
Resolution involves determining whether the screenshot evidence was authenticated so as to meet the test of admissibility.
Resolution also requires addressing the issue of the integrity of the electronic system on which the evidence was stored. The erroneous admission of the photographs had prejudice (sic) the appellants case rendering the trial unfair.
Ground 3-
The Learned Trial Judge failed to Direct Jury as to Crown’s Exhibit 19
The Learned trial judge (sic) failed to direct the jury as to how to approach the WhatsApp messages and or failed to offer any meaningful assistance to the jury on how to deal with the screenshots of WhatsApp messages.
Having admitted such evidence and allowing the case to go to the
jury, the learned trial judges (sic) summation was vague and inadequate.
It did not assist the jury sufficiently with how to treat the factual and legal issues concerning the photographs contained in the Crown’s Exhibit 1.
Ground 4-
Inadequate summation
The learned Trial Judge’s summing up was inadequate as the Trial Judge failed effectively Marshall (sic) the evidence to the jury during her charge.
The learned Honourable court of appeal JUSTICES said that, “significant lacuna” in the evidence of the witnesses and in the judge’s summation. In this case before us there is a substantial transcript of the evidence of the witnesses and at least two-thirds of the Judge’s summation has been recorded, but the unavailability of missing portions, particularly the examination-in-chief of the Complainant and the general directions makes the issue no less grave.
As the Judge herself the Honourable Ms. Tanya Lobban-Jackson noted in her review of the evidence of the complainant, the case boils down to the word of the complainant.
The appellant, his attorney and the Court are entitled to have more than the Judge’s interpretation of the evidence before them to determine this Appeal.
The Prosecution has argued that the lack of a trial transcript is not always fatal to a case. In Evon Jack v R [2021] JMCA Crim 31 the Court of Appeal of Jamaica, noted that it was more likely to be fatal if it was combined with other factors, such as delay, I find that in the context of this case, the importance of the evidence of the Complainant and the other missing portions is sufficiently serious to establish that there is Constitutional deprivation of his, the Appellant’s rights.
The Court spoke on another local sexual case in which this happened before here in the TCI and said it is useful to repeat the injunction of Court in Saunders at paragraph [17} that “in future it is the responsibility of the Registrar and staff of the Registry to secure the record of proceeding from which the Record of Appeal is to be prepared’.
The court said, ‘clearly, that future is now.’
While technological failures cannot be predicted or always avoided, the circumstances in which a woefully inadequate transcript is presented to this Court with no explanation should henceforth be rare.
There has been no significant delay in this matter to the level of the eight-year delay in Evon. The Appellant was convicted on the 17″ January 2023 and sentenced on the 17″ March that year. There are few witnesses, and the evidence of the Complainant is the mainstay of the Prosecution’s case. It is therefore a suitable candidate for a retrial.
The Order of the Court is to allow the appeal, quash the conviction and sentence and order a retrial.
The court final words in this appeal decision were that, in the circumstances, it is prudent to not deal with the other grounds of appeal so as not in any way to tie the hands of the judge rehearing the matter.
KENO WILLIAMS has since been released on bail pending the decision of the office of the DPP if they will retry the case or just dismiss the matter against the accused.
