Penal gardener loses sex-offences appeal

PENAL gardener Kishore Lutchman will have to serve out his 14-year jail term for committing sexual acts on a ten-year-old primary school student on four occasions dating back to 2007.

Lutchman, of Penal Rock Road, lost his appeal on Thursday after the Court of Appeal dismissed all three grounds of appeal that he filed challenging his convictions for two counts of serious indecency and two counts of grievous sexual assault on March 24, 2017. His sentence and conviction were affirmed.

He had been sentenced to 14 years hard labour on each count of grievous sexual assault and five years on each count of serious indecency. His sentences, imposed by Justice David Harris after he was found guilty by a jury, were to run concurrently.

Lutchman was represented by attorneys Daniel Khan, Ula Nathai-Lutchman, Harrynarine Singh and Davina Inalsingh. The State was represented by senior prosecutor Sabrina Dougdeen-Jaglal.

The prosecution’s case was that in September 2007, Lutchman committed the first act of serious indecency on the child. The child was warned by the accused not to say anything.

On another occasion in that same month, Lutchman made the child put on pornography DVD for them to watch. The child left and when she returned the accused's pants was allegedly pulled down to his knees and he was playing with himself. She was again warned not to tell anyone. The third offence took place in a car in December 2007.

Sometime in January 2008, while the child was sleeping, the accused lay down next to her and sexually violated her.

The girl eventually told her mother and Lutchman was arrested at his home in May 2009 and charged by Sgt Dridgenath Sookraj.

At his trial, Lutchman did not testify or call witnesses, but his defence was one of fabrication and denial.

In their decision, Justices of Appeal Alice Yorke-Soo Hon, Maria Wilson and Malcolm Holdip disagreed with Khan’s contention that because the child was ten, her evidence would be unreliable.

When she testified, she was already an adult and Khan said the trial judge was duty-bound to include a warning to the jury of the inherent dangers in relying on the evidence. He also pointed to the fact that the matter was reported to the police when she was 12.

The judges also dismissed Khan’s complaints that the judge failed to properly direct the jury on credibility and reliability and the issue of consent. On the latter, he contended the judge should not have spent such a considerable part of his directions on the issue as it may have led the jurors to lose focus on Lutchman’s defence of denial.

In their decision, the Appeal Court judges said, “The appellant was charged with separate categories of offences under the Sexual Offences Act, the ingredients of which were distinct. For the offence of grievous sexual assault, the issue of consent is an essential element, and no exception was created for minors.

“…Whilst the trial judge spent a considerable portion of his summing up on the issue of consent as it related to grievous sexual assault as distinct from serious indecency, we do not believe that it would have distracted the jury from considering the appellant’s true defences of denial and fabrication.”

They said he was under an obligation to direct the jury on consent, adding also that his directions on the other issues Khan raised were clear and concise.

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