Appeals Court orders retrial for illiterate man convicted on carnal abuse charge
An illiterate man is to face a new carnal abuse trial because the Court of Appeal said he suffered a substantial miscarriage of justice in June 2011 when he was left to defend himself after his lawyer withdrew from the trial.
The court found that 63-year-old Beres Douglas suffered great prejudice as a result of the absence of his lawyer thereby rendering his trial unfair.
Attorney-at-law Alando Terrelonge withdrew from the matter because the trial had started in his absence.
The court said it understood and appreciated Terrelonge's serious concern that the trial had begun in his absence, particularly having been told by the prosecutor that there was another statement that she wished to obtain.
"We accept that part of an advocate's role is to assess the witness giving examination-in-chief in preparation for cross-examination and that he is not present in court merely to write down what the witness has said. However, the fact that in the circumstances which obtained, his representation of the appellant would have been less than ideal, does not mean that it was appropriate to walk out of court leaving his illiterate client without his advice and assistance," the court said.
Terrelonge had informed the court that he had sent a lawyer to give the court a new trial date since he had already agreed to an adjournment with the prosecutor.
He said then that he was most surprised that the trial had started in his absence.
He pointed out that he was recently assigned to the case and the date on which the adjournment was being sought was only the second trial date.
Justice Carol Edwards refused to release Terrelonge from the case because it had been set for priority and the date sent by Terrelonge was not convenient.
She also pointed out that the complainant was now living overseas and would be inconvenienced by an adjournment.
The Court of Appeal said today that Douglas suffered prejudice as he did not understand the trial process and so was unable to participate properly in the cross-examination of witnesses and did not understand the importance of the right to remain silent and/or the efficacy of giving viva voce (by word of mouth) evidence in his trial.
The court also found that Terrelonge's withdrawal from the matter, was in breach of his obligations to Douglas and opened him to severe prejudice and contributed to the trial being unfair.
Additionally, the court found that the manner in which the judge conducted the proceedings when Terrelonge indicated that he wanted to withdraw also rendered the trial unfair.
"While she made attempts to persuade Terrelonge to remain in the matter, there was no adjournment to facilitate a cooling-off after the altercation between herself and Terrelonge and no such adjournment was suggested by the Crown, the defence or the bench," the Appeals Court said.
The court said further that when Terrelonge decided to withdraw from the matter, the judge did not enquire whether Douglas wanted to seek another lawyer and did not adjourn so that he could obtain alternative legal representation.
In their unanimous decision, Justices Dennis Morrison, Hilary Phillips and Patrick Brooks said after weighing all the factors together they were of the view that a new trial ought to be ordered.
The court took note of the fact that the matter has been pending for the past seven years and Douglas was not in custody during or since the trial.
The court said that since the witnesses were still available and given the seriousness and the prevalence of the offence, the interest of justice demands that a new trial ought to be ordered.
Douglas was charged with three counts of carnal abuse involving a 12-year-old girl in 2009.
In June 2011, a jury freed him of two counts of carnal abuse but convicted him of the third count.
He was sentenced to four years' imprisonment at hard labour.
He will face trial for one count of carnal abuse.
Attorney-at-law Alando Terrelonge and Kristina Exell represented Douglas on appeal while Sharon Milwood-Moore, deputy director of public prosecutions represented the Crown.