Lopez Keno Williams v R

JurisdictionTurks and Caicos Islands
JudgeCornelius Thorne, JA
Judgment Date29 February 2024
Neutral CitationTC 2024 CA 4
Docket NumberCR-AP 01/2023
CourtCourt of Appeal (Turks and Caicos)
Between:
Lopez Keno Williams
Appellant
and
Rex
Respondent
Before:

The Hon. Mr Justice Adderley, JA, President (Ag.) (Presiding)

The Hon. Madam Justice Cornelius Thorne, JA

The Hon. Mr. Justice Hylton, JA

CR-AP 01/2023

IN THE COURT OF APPEAL

Sexual Assault by Penetration — Appeal against Conviction and Sentence — Constitutional Rights — The Right of Review of Conviction or Sentence — The Right to a Fair Hearing — Incomplete Trial Transcript — The Effect of an Incomplete Transcript — Whether an Incomplete Transcript constitutes a deprivation of the Appellant's Constitutional Rights.

Cases considered:

Evon Jack v R [2021] JMCA Crim 31; Treverson Saunders v Regina; Lincoln Smith v Regina (CR-AP 7 of 2015; CR-AP 28 of 2015) [2017] TCACA 4 (1 December 2017).

Appearances:

Mr Oliver Smith K.C for the Appellant

Ms Nayasha Hatmin for the Respondent

Cornelius Thorne, JA
1

Sexual abuse of children plagues our societies. Cases involving sexual abuse are particularly sensitive because of the recognised vulnerability of the complainants, and the potential loss of freedom and reputation of the accused. The prosecution and adjudication of such matters are rife with legal difficulties which the courts must carefully negotiate. The most careful handling of the case must be taken by the State at every stage to protect the rights of both complainant and accused.

2

On 17 th January 2023 Keno Williams, the Appellant, was convicted of one count of Assault by penetration contrary to Section 4 (1)(a) of the Sexual Offences Ordinance, Chapter 03.24. He was sentenced to a four-year term of imprisonment. He has appealed his conviction and sentence.

Background
3

The case for the Crown was that the Appellant was well known to the Complainant, who was 14 years old at the time the (alleged) offence took place. A series of WhatsApp messages were exchanged between them, in which the Appellant importuned her with request for sexual activity in return for money she requested. The Complainant saved some of the messages on her phone and took screenshots of others.

4

The Crown's case continued that she later sent these screenshots to another close friend. On the date of the offence while the Complainant was babysitting the child of the Appellant's girlfriend, the Appellant pushed her up against a wall and sexually assaulted her. Apart from her friend to whom she sent the WhatsApp messages and confided the incident, she told no one until she had an argument with her mother, to whom she then revealed the assault. The Appellant's defence was a total denial, asserting that the WhatsApp messages were a fabrication made to a proxy account set up by the Complainant, and that the sexual assault never happened. As in most sexual offence cases, the primary witness was the Complainant.

Grounds of Appeal
5

The grounds of appeal were filed on 22 nd March 2023 and amended by new Counsel on 27 th December 2023. The amended grounds of appeal are:

Ground 1-Incomplete and Inadequate Trial Transcript

The incompleteness and inadequacy of the trial transcript it's patently reflected in the missing sections of the evidence of witnesses as to material facts, as well as the absence of sections of the trial judges (sic) summation to the jury. Such lacuna constitutes a breach of the right of the appellant to have adequate time and facilities for the preparation of his defence (appeal) as guaranteed under section 6(1) (c) of the Turks and Caicos Islands Constitution Order 2011.

Further the incompleteness and inadequacy of the trial transcript, as an example, the absence of the evidence in chief of the virtual complainant, further constitutes a breach of the right of the Appellant to have a copy of the record of the proceedings made by or on behalf of the court, as guaranteed under the said section 6(3) of the Turks and Caicos Islands Constitution order 2011.

The cumulative effect of the several cited instances of missing transcripts and the multiplier inadequacy, results in the denial of the constitutional rights set out above and as such the appellant has been, is being an is likely to be denied due process contrary to the Constitution.

Ground 2-Admissibility of Computer-Generated Evidence

The learned trial judge erred in allowing the photographs of screenshots evidence. Resolution involves determining whether the screenshot evidence was authenticated so as to meet the test of admissibility. Resolution also requires addressing the issue of the integrity of the electronic system on which the evidence was stored.

The erroneous admission of the photographs prejudice (sic) the appellants case rendering the trial unfair.

Ground 3-The Learned Trial Judge failed to Direct Jury as to Crown's exhibit 19

The Learned trial judge judge (sic) failed to direct the jury as to how to approach the WhatsApp messages and or failed to offer any meaningful assistance to hold to the jury on how to deal with the screenshots of WhatsApp messages.

Having admitted such evidence and allowing the case to go to the jury, the learned trial judges (sic) summation was vague and inadequate. It did not assist the jury sufficiently with how to treat the factual and legal issues concerning the photographs contained in the Crown's exhibit 1.

Ground 4 Inadequate summation

The learned Trial Judge's summing up was inadequate as the Trial Judge failed effectively Marshall (sic) the evidence to the jury during her charge.

Ground One: The Incomplete and Inadequate Trial Transcript
6

Substantial parts of the transcript are inexplicably missing. The entire first part of the summation, the...

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