Child sex conviction overturned due to court delays
A man who was found guilty of a sex offence involving a child has had his conviction overturned owing to the length of time his trial took.
Assistant Puisne Judge Mark Pettingill ruled that the man, who was convicted by Magistrate Khamisi Tokunbo almost two years after his first court appearance, did not get a fair trial in a reasonable time.
Mr Justice Pettingill said: “There should be no retrial given the issues of an inordinate delay and the obvious traumatic impact this would have on the child complainant.”
Cindy Clarke, the Director of Public Prosecutions, said yesterday the Crown would appeal the ruling.
The man’s lawyer, Jerome Lynch KC, told The Royal Gazette that although his client, who the Gazette is not naming, was “delighted” with the result of his appeal, the case highlighted a ”serious problem that the system needs to address”.
Mr Lynch said: “This is not justice for anyone.
“The victim loses out in being able to have their case properly heard, the defendant loses out in not having his case determined on the merits, society is left wondering whether this was a true bill and the public pay for what ends up being a complete waste of time and resources.
“If a case is dismissed for abuse of process there is no determination of the allegation either way.”
Mr Justice Pettingill, setting aside the man’s conviction for attempting to induce a child by invitation to touch him in a sexual manner and replacing it with a not-guilty verdict, criticised the way the case was managed in Magistrates’ Court.
He agreed with Mr Lynch that setting aside two days for the trial was “never going to be enough time” given the number of witnesses and he said that “set the stage for inevitable delay as the matter progressed and had to be adjourned”.
“All in all, the trial took 21 months from the defendant’s first appearance to a conviction …” the assistant judge wrote in the January 20 ruling.
“During this period there was an astounding 18 total appearances in the Magistrates’ Court.
“The trial itself spanned 11 months with significant breaks in between witnesses, including 22 weeks before the defendant gave evidence and the final witness for the prosecution was heard.
“The court finds that the disjointed approach, particularly in a trial involving a minor, is fraught with peril and should be pointedly and diligently avoided by magistrates hearing these types of cases.”
Mr Justice Pettingill added: “The court is strongly of the view that cases involving children and young persons in matters of sexual allegations should be given paramount priority in being heard by the courts as soon as practicable, both for the sake of the minor child and also to ensure that the constitutional rights of the defendant are complied with.”
A child protection charity said yesterday that the ruling from Assistant Puisne Judge Mark Pettingill highlighted that children brave enough to report abuse were being “failed” because of “significant issues in our justice system”.
Saving Children and Revealing Secrets said in a statement that child victims and their families should not be “put through the stressful rigours of repeated court appearances”.
The statement said: “We must ensure that child complainants are dealt with in a timely fashion to lessen the traumatic experience of having to face accusers in court, who invariably deny their wrongdoing.
“The legal system is failing the children of Bermuda who are brave enough to report and it’s failing their families who are reacting responsibly.”
The Child Safeguarding (Miscellaneous Amendments) Act 2019 required criminal cases concerning sexual offences related to a child to be "treated as a priority for case management purposes“.
Scars said that change in the law was “aimed at ensuring every child sexual abuse case was prioritised and heard promptly” but there appeared to have been no change in Magistrates’ Court scheduling.
“Whether that change is achieved by allowing a child to have specially assigned legal representation, in addition to the assigned prosecutor, or whether the Magistrates’ Court could be required to sit on continuous days until the trial is finalised, Scars hopes that this result will ensure that children receive the justice they deserve.”
The charity thanked the complainant and family in this case for “doing the right thing” in coming forward and the authorities for pursuing the case.
Mr Lynch previously represented Kenneth Williams, who was found guilty of sex offences against a child under the age of 14, but who had his conviction overturned in 2020 owing to delays with his trial. The lawyer was critical then of the court’s management of the case.
Mr Lynch said yesterday it “would appear little has been done in the interim to stop this happening”.
He added: “It’s tough enough for victims to come forward, tougher still for them to give evidence. To have it thwarted in this way is very unfair.
“As a defendant being charged with such heinous crimes it is very hard to bear; your name is plastered all over the press, you may lose your job and expect the opprobrium of society.
“If it is untrue, you need to be exonerated as soon as possible, not wait for years for it to be determined on a technicality.”
The appellant, who was represented by Michael Scott during his trial, could have faced up to five years in jail for the offence for which he was originally found guilty.
The Royal Gazette reached out for comment to the Chief Justice and senior magistrate. The Acting Registrar for the Courts said Larry Mussenden, the Chief Justice, would not be in a position to address the query until next week.
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