BASSETERRE, St. Kitts - A retrial has been ordered by the Eastern Caribbean Court of Appeal for a Police Constable who was convicted of indecent assault.
Junior Gordon was convicted and fined EC$6 000 for inappropriately touching a female minor on March 22, 2008 in a supermarket in Molineux, but he has since appealed the conviction.
At the time of the incident, Gordon, a national of Jamaica, had been a member of the Royal St. Christopher and Nevis Police Force for some three years.
Appearing before the Appeal Court Tuesday (Mar. 12) and represented by Attorney-at-Law Anthony Johnson, the appellant put up an intense argument.
Arguing on the ground that his client's conviction was "unsafe and unsatisfactory", Johnson said that Gordon should not have been charged contrary to Section 47.1 of the Offence Against the Person Act.
Johnson submitted that the section of the law under which his client was charged was purely a penile section, in that it only prescribes a penalty for the offence of indecent assault and that he should have been charged with the offence contrary to Common Law.
He also argued that the identification of Gordon by the virtual complainant was involuntary, assisted and as a result of prompting by her father and the investigating officer.
He told the Court that Gordon was confronted by the investigating officer and the victim, who was accompanied by the her father, and she was asked if the appellant was the one who indecently assaulted her and she replied in the positive.
Johnson went on to tell the Court that the identification was not given voluntarily, but rather by the virtual complainants' father and the investigating officer pointing and asking if Gordon was the culprit. He noted that there were at least two to instances of prompting in the matter which was unsafe and improper.
Additionally, Johnson argued that the statement given by the victim's mother, in which she said that the child told her Gordon was the assaulter, was taken after he was identified, which indicated that there was a possibility of it not being genuine.
He also argued that there were no eyewitnesses to the crime which allegedly took place in a store with other people in it.
The attorney further argued that the trial judge, in his summation to the jury, failed to highlight inconsistencies in the virtual complainant's evidence.
These related to the position of the victim when she first saw Gordon in the supermarket, whether she gave evidence at the Preliminary Inquiry, whether she stated in her witness statement that she walked home with Ronda, and the manner in which the indecent assault took place.
Counsel also addressed the issue of corroboration.
He stated that the trial judge, while stating in his summation that there existed no corroboration in law, went on to suggest to the jury that they could take into account the evidence of the virtual complainant's sulky demeanour and other behaviour which in law do not amount to corroboration.
He also contended that the trial judge's direction on corroboration was inadequate and that he failed to highlight the fact of the minor age of the virtual complainant, the fact that at such a tender age she could have easily been influenced especially when prompted by her father and the investigating officer.
When asked by the Justices of Appeal, the respondent, Acting Director of Public Prosecution Rhonda Nisbett-Browne, said that the statement given to the mother by the virtual complainant was in no way prompted and was voluntary and genuine.
She rebutted that the fact that the mother's statement was taken after Gordon was identified as the assaulter did not affect the matter in any way, because the statement reflected what the virtual complainant said happened to her and she identified Gordon in her complaint to her mother.
She argued that while the corroboration warning by the trial judge was not given in a certain context, it was however given in a manner in which the jury could clearly understand.
She also argued that the quality of the evidence given by the victim, including recognising Gordon and going home and immediately telling her mother what took place, was overwhelming.
She further argued that the trial judge was adequate in giving direction and guidance with regards to all evidence presented.
The issue of good character was raised by the Justices of Appeal.
They asked: "Had the trial judge direct the jury on the appellant's character and credibility, would the outcome have been the same?" to which Johnson replied in the negative while Nisbett-Browne maintained that the outcome would have been the same.
In delivering the decision, President Baptiste said that the Court had to ask itself "whether it is content to allow the verdict to stand or whether lurking doubts caused it to wonder whether injustice has been done".
He said the reaction might not have been based strictly on the evidence but could have been produced by the general feel of the case as experienced by the Court.
He also said that while it is true that Section 47.1 is penile in nature, no injustice was done to Gordon by it.
"I am not buying that there are any merits on this ground," he told Johnson.
With regards to the issue of identification, President Baptiste said that it was clear in the evidence that the virtual complainant had complained to her mother "in clear terms as to the assault which she experienced in the store and although she did not call the Appellant by name, she gave sufficient information which caused the mother to report the matter to the police".
He said whether the statement was given before or after the confrontation, there was no doubt in the virtual complainant's mind as to who indecently assaulted her in the store.
"Furthermore, the appellant was a person who was known to the virtual complainant, and in his statement he did say that he was in the store but denied committing any offence. In these circumstances, I do not find any merit in this ground," he stated.
Speaking to the ground of inconsistencies, the Justice said that he was of the view that the trial judge dealt adequately with the matters and that they were not of such importance as to affect the safety of the conviction.
He went on to say on the issue of the victim's demeanour during the trial, that it was their view that the trial judge was in essence addressing the issue of the stress condition of the virtual complainant, and in that regard the trial judge ought to have given the jury clear directions on how to deal with the distressed condition or stress shown by the victim.
"He ought to have directed the jury along the lines that the stress shown by the virtual complainant ought not to be over emphasised and, that in most cases, little weight ought to be given to such evidence and that the stress does not amount to corroboration," he said.
Addressing the issue of good character, President Baptiste said there was clear evidence of such raised during the course of the trial, but the trial judge omitted to direct the jury on that, and such direction is not necessarily fatal to the fairness of a trial or safety of a conviction.
He said the question is whether the jury would have inevitably convicted Gordon even if a good character direction had been given.
He concluded: "Having looked at this matter carefully and considering the issue present in the case, the nature of the evidence and the fact that there was no other available evidence against the appellant, apart from the virtual complainant which was not corroborating and taking into account the nature of the offence and considering the age of the virtual complainant, we are not of the view that the jury would inevitably have convicted the Appellant."
The appeal against conviction and sentence was set aside and a retrial was ordered.
