Sat | Aug 18, 2018

New rape trial - Court tosses conviction for assault of 6-y-o girl because of judge's error

Published:Thursday | August 9, 2018 | 12:00 AMLivern Barrett/Senior Gleaner Writer

A St Mary man who was found guilty of raping a six-year-old girl has had his conviction quashed by the Court of Appeal because of errors by the judge who presided over the trial.

Further, the Court of Appeal has set aside the 23-year prison sentence that was imposed on Joel Henry and ordered that he face a new trial.

"The appeal succeeded because of errors on the part of the [trial] judge and not as a result of any deficiency in the evidence relied on by the prosecution," the court said in its eight-page decision.

Henry was found guilty of rape by a jury following a trial in the St Mary Circuit Court in July 2015.

Prosecutors led evidence that sometime between September and December 2013, the child was walking home from school when she was approached by Henry, who was well-known to her.

According to the child's evidence, he lifted her up, took her into a house and placed a handkerchief over her mouth as she tried to scream before having sex with her.

Henry maintained throughout the trial that he did not rape anyone.

Through his attorney, Gladstone Wilson, Henry challenged his conviction. He argued, among other things, that the judge who presided over the trial erred by failing to give the requisite warnings to the jury about the need for caution when dealing with the evidence of identification and the dangers of acting on the uncorroborated evidence of a child.

Wilson, citing several legal authorities, argued that it was an "inflexible rule" of practice that a jury should be warned of the danger of acting on the evidence of a child of tender years and be told why it was dangerous to do so.

The Court of Appeal, in its decision, which was handed down last week, noted that the trial judge "obviously" took the view that because Henry did not dispute the child's evidence that she had known him for a long time, identification was not in issue.

"But in our respectful view, he [the trial judge] was clearly wrong on this point," the court ruled.

"The appellant's [Henry] stance was that he was not the person who committed the offence, so the correctness of the complainant's identification of him as her assailant was plainly in issue. Accordingly, the judge was required to warn the jury," the court added.

The panel of three Appeal Court judges also ruled that the trial judge omitted to give the jury three "very important" warnings during his summation.

These included a warning about the dangers of acting on the uncorroborated evidence of a child and a direction as to the relevance of the appellant's good character to his propensity to commit the offence he was accused of.

livern.barrett@gleanerjm.com