An 85-year-old woman raped in her home by a “fierce” intruder after he and an accomplice beat and tied up her husband fears her attacker may never be brought to justice.

Joan Aspinall told a Supreme Court jury last week that the man accused of the serious sexual assault, standing before her in the dock, was not the perpetrator, and the case was thrown out.

Ms Aspinall, an artist and author, even apologised to the defendant, a convicted sex offender with a violent past, who cannot be named for legal reasons.

Waiving her right to anonymity, she told The Royal Gazette that police and prosecutors had pointed the finger at the wrong man.

“I would like to see their evidence,” she said. “Everything is so secretive. I have a lot of questions I want answered.”

Darrin Simons, the Commissioner of Police, insisted last week that the investigation was “thorough” and decisions to prosecute were based on “substantial evidence”.

He said “in the interest of fairness, investigators cannot share details of their investigation to shape witnesses’ recollections”.

Expressing his “deepest sympathy” to Ms Aspinall and her husband for the “unimaginable” trauma they endured and praising them for their courage, he told the Gazette the case was now closed.

That means detectives won’t reopen the investigation into the October 19, 2021 crime because they and prosecutors have no doubt that, based on the evidence, the right person was charged with the rape.

As that man was acquitted, after a 2½-year wait for his trial, Ms Aspinall questioned whether she would ever get justice.

But she said she had to speak up when she saw the accused in person because his dark skin colour convinced her he was not the rapist.

“My spontaneous reaction was the result of seeing his skin colour,” she said. “He was not the torturer. I stood up so fast, I surprised myself.

“I said, ‘I have never seen the face of [the defendant] and I never knew what colour he was, but this is not the man who tortured or sexually assaulted me’.

“When I came away from court … I thought, well, I have done my duty. I went there and told the truth.”

She added: “What I was able to get over to the jury, which I think is very important, is the amount of cruelty and torture I was subjected to.”

The defendant, she said, did not have the “fierceness” she recalled of the rapist, whom she described as “an animal” who left her “crippled and broken”.

“He is violent and he is so dangerous. What he has done, he has ruined my life. That’s the most emphatic statement I can make. He needs psychiatric care and direction.”

Ms Aspinall’s belief about who raped her cannot be reported for legal reasons.

However, the Gazette understands it doesn’t tally with her husband’s account of the sequence of events, set out in his sworn statement to police. His version is supported by the other evidence.

Mr Simons said: “I acknowledge the victim's perspective on the charging decisions.

“Victims must speak their truth. However, cases must be presented according to the totality of evidence collected.

“Sadly, victims of such horrific crimes often experience trauma that affects their ability to accurately recall events. This is a well-documented phenomenon.”

Ms Aspinall claimed prosecutors should have interviewed her and her husband before pressing charges, rather than relying on the police statement that her husband gave in the aftermath of the traumatic attack.

She said he was “distraught” and because English is not his first language he would have struggled to understand the questions during his police interview.

She told the Gazette she flagged up her concerns about identity with prosecutors last summer after being asked to write a victim impact statement.

There was no further contact with them until last month, when she and her husband were asked to attend the Department of Public Prosecutions, unaware the trial of the alleged rapist was due to begin days later.

At an April 18 meeting, Ms Aspinall was shown a photograph of the accused, as well as a drawing she did of the man who raped her.

The prosecutors asked her if she recognised how the nose in her picture seemed to match that of the defendant, but she insisted she may not have got an accurate likeness because of the angle she was looking at him from.

Her attacker’s mask slipped during the assault and she saw a “kid’s face, a man child, not that of a 46-year-old”.

Ms Aspinall became irate with prosecutors and the meeting ended at an impasse.

“For them to say to me that I do not know what my rapist looks like, I know what I saw,” she said. “They weren’t there.

“I know who tortured and raped me. A woman knows who raped her, especially after looking at his face for ten minutes.”

A further meeting with Crown Counsel Adley Duncan at the couple’s home on April 25 did nothing to allay her concerns about whether the right person was charged.

The trial of the defendant, who pleaded not guilty to aggravated burglary by entering a senior couple’s property while armed with a knife, robbing the husband of cash and ATM cards, and committing a serious sexual assault on Ms Aspinall, began on April 29.

After lunch the same day, it was over, Mr Duncan having told Puisne Judge Charles-Etta Simmons that in light of the complainant’s evidence under cross-examination, it would be impossible to invite a jury to find the defendant guilty.

Mrs Justice Simmons ordered a verdict of not guilty on all counts.

Mr Simons told the Gazette: “In this case, two masked men entered a home and committed a number of serious crimes.

“One of the men stole the victim's bankcard and went to the ATM machine, while the other man committed a serious sexual assault.

“Investigators are clear, from various pieces of evidence, including CCTV, which man went to the ATM. That man pleaded guilty and was sentenced for that crime.”

He added: “I want to assure the public that the charges brought against both defendants were based on a thorough investigation.

“The decision to prosecute, in both cases, was made with substantial evidence of each suspect's role. As a consequence of the court's disposition, this matter is now closed.”

Cindy Clarke, the Director of Public Prosecutions, said: “We are always disheartened when a member of our community is a victim of violence.

“I wish to remind the public that the Department of Public Prosecutions do not appear as the victim’s personal counsel.

“We do not act on instruction from a victim; we have professional responsibilities, which sometimes require us to act contrary to what a victim believes should happen. That is because we prosecute on behalf of the people of Bermuda as a whole.”

She added: “When a public prosecution is commenced, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This is based on the prosecutor’s objective assessment of all the evidence.

“In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

“In this matter, both limbs of the necessary tests were met, notwithstanding the victim’s insecurity in identifying the accused.

“In the end, the prosecution was ended as a result of her apprehension and it was no longer in the public interest to proceed.”

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