The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE Court of Appeal has affirmed the conviction and 20-year sentence of a man who sexually assaulted an eight-year-old boy.

Navardo Johnson, 37, stood trial before Justice Indra Charles on unnatural sexual intercourse charges that were alleged to have occurred in January, 2013.

He was unanimously convicted by a jury in December, 2014, who rejected his claim that he did not commit the offence against the child and in 2015 was sentenced to 20 years at the Department of Correctional Services.

Johnson challenged the conviction and sentence on the argument that the judge was duty-bound to address the issue of good character at the trial and that the prosecution failed to produce important medical evidence, therefore failing to prove an essential element of the alleged offence.

He also claimed that his defence lawyer failed to make a no-case submission at the close of the prosecution’s case, and that prejudicial evidence of bad character was introduced to the jury, which rendered the verdict unsafe.

The 20-year-sentence, he said, was unduly severe.

The appellate court, in a 2-1 majority decision handed down on Monday, dismissed the appellant’s challenge to both conviction and sentence with Justices Dame Anita Allen and Roy Jones rejecting his arguments.

“Contrary to the appellant’s complaint that the verdict is unreasonable and cannot be supported by the evidence as a result of the major inconsistencies and contradictions in the evidence, the jury no doubt followed the judge’s clear instructions and properly found the inconsistencies and discrepancies complained about to be minor and such that they did not weaken or destroy the evidence of the complainant or that of his father that the appellant committed the offence,” Dame Anita said.

“Penetration is not an essential element of the offence of which the appellant was convicted. Indeed, sexual intercourse includes any degree of penetration or stimulation of the anus of any person, by or with any part of the body of another person.

“As to the issue of the appellant not being given a good direction, precedent indicates that it is the duty of counsel to raise the issue of good character because only counsel knows the instructions of his client. That notwithstanding, judges would be well advised to ask counsel whether they intend to put character of the accused in issue so as to clarify the situation, in as much the failure to do so may render the verdict unsafe.

“It is clear that it is not be automatically assumed that the omission of a good character direction is always fatal to the fairness of the trial or to the safety of a conviction. That depends on whether, given the nature of the issues, the strength of the evidence in the case and the likely impact of a good character direction on those issues and evidence, the lack of a good character direction would have affected the jury’s verdict and the safety of the conviction,” Dame Anita noted.

“In this case, it cannot be gainsaid that the appellant was entitled to a good character direction, but in our view, the omission was not fatal to the fairness of the trial or the safety of the conviction. The evidence against the appellant was overwhelming as the boy’s complaint of sexual intercourse was corroborated by the evidence of the father, who gave evidence that he caught the appellant in the act of having sexual intercourse with his son,” the appellate president added.

On the issue of bad character causing prejudice, Dame Anita said the judge had warned the jury to disregard the question posed by Johnson’s own defence counsel at trial because it was not relevant to the case in question.

“We have no lurking doubt about the safety of the conviction. The evidence against the appellant is cogent and overwhelming,” the ruling said.

On the issue of the sentence, the affirming judges stressed that the maximum tariff for the offence Johnson was convicted of was life imprisonment.

“After a review of the circumstances of the offence and of the offender before the judge at sentencing, we were unable to say that she erred,” Dame Anita said in affirming the 20-year penalty.

In her dissent, Justice Stella Crane-Scott said that a good character direction is always relevant in cases where credibility is crucial to the outcome of the trial.

“In cases where credibility is paramount and the jury is faced with a choice between deciding whether they could accept the evidence of the prosecution witnesses or rejected the appellant’s denial as untrue, there is a marked reluctance, even in the face of overwhelming evidence, to accept that the application of the proviso is appropriate since credibility is the very issue on which a direction on credibility and propensity based on good character might have some effect.

“The appellant having had no previous convictions was therefore a person of good character and was entitled to the benefit of a good character direction because ‘it is evidence of probative significance’ and ‘capable of having some effect in every case in which it is appropriate for such a direction to be given’,”

Justice Crane-Scott said Johnson was deprived of the direction because of defence counsel’s failure to raise the matter directly in the trial.

“One aspect of the prosecution’s case which, may have had a bearing on the credibility of the prosecution and which, together with a proper good character direction, could equally have weighed in the appellant’s favour was the inconclusive nature of the medical evidence.

“In this case, it was clearly a feature of the evidence which combined with a proper direction as to the relevance of the appellant’s good character, could have weighed in the appellant’s favour,” Justice Crane-Scott concluded.

Roger Gomez Jr represented Johnson at the trial while Darnell Dorsette and Aaron Johnson prosecuted the case.

The appellant appeared argued his own appeal and Vernal Collie responded for the Crown.

The appellate court’s full judgment rendered on Monday and published yesterday, is available on the appellate court website.