Court of Appeal sets convicted rapist free

The Eastern Caribbean Supreme Court (ECSC) has upheld certain parts of the appeal of convicted rapist Joseph Senhouse who was sentenced to 35 years in jail after he was found guilty by a nine-member jury for buggery, unlawful sexual intercourse, and indecent assault on an 8-year-old girl 1st January 2013 and 29th August 2013.

Brief facts

The evidence of the virtual complainant at the trial was that on different occasions between 1st January 2013 and 29th August 2013, the appellant, with whom she was acquainted, called her into his home where he engaged in sexual conduct with her. She was unable to recall the dates of the incidents, but she testified that on the first occasion, she was headed to a shop with her sister when the appellant called her to his home; she entered through the back door and, once inside, the appellant penetrated her anus on a bench in his living room.

On the second occasion, she said that she was headed to her father’s home when the appellant again called her into his home and, once there, he put her to lie down on a piece of sponge in his living room where he removed her pants and underwear, began to play a pornographic film, and penetrated her vagina with his penis. On the third occasion, she said that the appellant again penetrated her [vaginally], this time on his bed. She said that there was a fourth occasion, but she could not recall what happened on that day.

She said, though, that on that last occasion, her mother met her and the appellant at the appellant’s home, and it was only then she reported to her mother what had taken place between her and the appellant on the 3 previous occasions. She said that she did not report the incidents to anyone previously because of the threats of physical harm made to her by the appellant.

Sentence

In passing sentence on Senhouse, Justice Errol Thomas (who is now deceased) stated that “The defendant, Joseph Senhouse, must be characterized as a person without a conscience, lacking humanity and, importantly, without a modicum of compassion. He is content to have vaginal and anal sex with an 8-year-old child after having a prior sexual relationship with her mother.”

Justice Thomas told Senhouse that the factors which point to his lack of humanity and compassion are the following: “the fact of the child’s appearance: less than 4 feet tall, about 70 pounds body weight, being and an 8/10-year-old version of what her body was at two or three years old. This posed no impediment on approaching your 50th birthday and telling your victim “Come a while”, on at least 4 occasions. That while, turned out to be sex in her anus and vagina.”

“The victim even gave evidence of something looking like soft bread coming out of her vagina on one occasion when he was finished. No imagination is required and other matters also arise. And, to add insult to injury, the defendant, when he had satisfied himself, gave his victim fruits plus two dollars on one occasion and five dollars on another occasion. The intent is patent.”

“To do as you did to an 8-year-old child with a body weight of about 70 pounds can only be described as heinous. And people like you and those in custody for this reason before you deserve no mercy. As such, the principles of retribution, deterrence, and protection come into full play to the rescue of the Dominican society. More to the point Dominica needs to be protected from people of your ilk.”

Therefore, in the context of a child of 8 years, the numerous aggravating factors, and the 1997 sentence of 15 years for unlawful carnal knowledge of your daughter your sentences are as follows: 1. Buggery- 25 years 2. Unlawful Sexual Intercourse 25 years 3. Indecent assault 10 years

The sentences for buggery and unlawful carnal knowledge will run concurrently, that is to say, together. The sentence of 10 years for indecent assault will run consecutive to the sentence for the other two offenses. Your total sentence therefore is 35 years.

But in its decision, Justice of Appeal Mario Michel who penned the decision stated, “I am not convinced that there was no miscarriage of justice in this case. Indeed, much of the grounds of appeal which were allowed concerned the appellant’s defense and its proper ventilation. Although I have found that counsel for the appellant was not prevented from advancing the defense to the jury in her address, it cannot be said that the jurors’ minds were not prejudiced by the learned judge’s summation where he discredited much of the appellant’s unsworn statement, after interrupting him and preventing him from completing it in unjustified circumstances.”

He continued, “Much also turns on the fact that there was no medical examination form tendered into evidence against the appellant in this matter, yet one of the witnesses gave evidence about a medical form and a medical examination when neither the medical form nor the medical examination was about the charges against the appellant; a fact which the learned judge failed to address in his summation to the jury.”

“I am not satisfied that this did not prejudice the jury’s mind against the appellant. Accordingly, I find that, based on the overall conduct of the case by the learned judge, it cannot be safely said that there was no miscarriage of justice. In all the circumstances of the case, I am of the view that the proviso ought not to be applied and that the appeal should be allowed, with the convictions being quashed. With this, the appeal against sentence falls away.”

According to JA Michel, “The incidents leading to the arrest, charge, trial, conviction and sentence of the appellant occurred in 2013 when the virtual complainant was 8 years old. She is now a young adult aged between 18 and 19 years old. The appellant, who would have been 49 years old at the time of the offense, is now between 59 and 60 years old. Justice will probably not be served to either of them if they, and their families, have to relive the sordid events which occurred on these 4 occasions between January and August 2013.”

“A new trial will also mean that the virtual complainant will have to undergo a third trial of this nature in her young life. Then too there is the fact that some witnesses may be unavailable or unwilling to testify to matters which 43 occurred as many as 11 years prior, while others may simply not recall relevant details.”

The offenses for which the appellant was convicted and sentenced are very serious ones, and although public interest is best served by the perpetrators of serious crimes being tried and punished for their crimes, it is not served by unfairness to accused persons such as might be occasioned by delays in the trial process not caused by the accused persons themselves. The appellant was convicted over 8 years ago. A new trial resulting in a verdict being given over 8 years later than would have been the case if the trial judge had not fallen into error, swings the balance against a retrial.

There is also a likely 11-year gap between the commission of the offenses between January and August 2013 and the date by which a new trial may be held. Also significant is the fact that the appellant would have spent over 8 years in prison between the date of his conviction in November 2015 and the date of this judgment. In all the circumstances, a new trial should not be ordered.

Conclusion- The justice of the case requires that the appeal be allowed, the convictions be quashed, the sentences be set aside and the appellant be discharged. I so order.

Dawn Yearwood-Stewart for Senhouse and DPP Sherma Dalrymple with Ms. Daina Matthew for the Respondent.

blob:https://www.eccourts.org/59981690-4449-4fbb-a1bb-38e745fd3ba7