New trial for Mayaro father charged with attempted incest

A MAYARO man will go on trial again for attempted incest with his then 15-year-old daughter in 2008.

Justices of Appeal Alice Yorke-Soo Hon, Mark Mohammed and Gillian Lucky ordered the re-trial on Tuesday, although they allowed his appeal because the trial judge made “material errors.”

The judges set aside the man's conviction on the charge of attempted incest, two counts of grievous sexual assault and two counts of indecent assault and the 16-year prison term he got at the end of his trial.

However, in ordering a new trial for the man, now 53, the judges said there was no doubt that incest and other sexual offences committed against young people were both very serious and prevalent.

Soo Hon, who gave the court’s decision, said while the strength of the prosecution’s case “stands and falls” on the evidence of the victim, who turned hostile at the first trial, the law makes provision for such witnesses so that evidence can be admitted for a jury’s consideration.

She said a new trial will be ordered after considering the public’s interest in bringing to trial those who commit serious offences and do not escape because of technicalities, and cognisant of the growing concern in the society for the safety of minors.

“The public must feel confident that the court is doing its duty in ensuring all parties, including the accused, have their matters determined in accordance with the law.”

The judges ordered the registrar of the High Court to put the case on the case-management docket no later than June 17 for it to be assigned to a new judge.

The man’s attorney, Daniel Khan, is expected to apply for bail soon.

In urging the judges to order the retrial, deputy DPP George Busby said even if the victim was unwilling to pursue the matter, the case could go on. He also referred to recent statements by the Prime Minister, among others, on child abuse in state-run homes and the judiciary’s own protocols, and recent training, on treating gender-based crimes.

“Everything points firmly to a retrial.”

In their ruling, the judges provided new guidance on how hostile witnesses should be treated at trial and reversed a previous decision on how judges are to direct juries on statements made by an accused to police and how they can be used at trial.

They referred to section 15H(1) of the Evidence Act, which deals with the procedure for hostile witnesses, and said, a decade later, they recognised the need for the court to provide further guidance. They did so setting out six points to be followed for treating a witness as hostile and what follows after.

Although the Appeal Court did not favour most of Khan’s complaints about the trial judge’s handling of the case, the turning point at appeal was the absence from the directions to the jury of what they could have considered from the victim’s refusal to testify and her father’s denial of the allegations against him.

“The failure by the judge to highlight any matters for the jury to consider in their determination of the defence of fabrication ran the real risk that the jury gave no consideration to the matter and therefore dismissed, without proper analysis, the case for the defence.

“The treatment of the defence(s) of an accused in a trial has to be meticulously handled by the judge because although the accused is presumed innocent and has no burden to prove his innocence, this fundamental principle can be easily sidelined by a direction, as in this case, that suggests otherwise.

“In our view, this direction by the judge was fatal to the conviction,” the judges held.

It was the prosecution’s case that the accused committed the sexual acts on his daughter on various days between 2008 and2009.

In the first incident, he performed oral sex on her, allegedly telling her if she ever heard children at school talking about it, she would know what it felt like.

He also allegedly told her not to tell anyone because he would go to prison and her mother would not be able to financially care for her and her sisters. He also allegedly said he was doing it because his side of the family was “hot-blooded.”

The second incident allegedly took place four months later, when the girl’s father again performed oral sex on her before leaving for work in the early hours of the morning.

A year later, he allegedly assaulted her again.

On her birthday, while with her sisters and mother at a restaurant, she broke down crying and a report was made to the police. When confronted, the father allegedly told police, “That child lying on me.”

Also representing the appellant were attorneys Ula Nathai-Lutchman, Matthew Gayle and Michelle Gonzales. Attorney Jagdeo Singh provided further submissions on key issues identified by the judges.

Appearing with Busby for the State was assistant DPP Sabrina Dougdeen-Jaglal.