By KEILE CAMPBELL
Tribune Staff Reporter
kcampbell@tribunemedia.net
THE Court of Appeal has quashed the conviction of a man sentenced to eight years in prison for attempting to have unlawful sexual intercourse with an underage girl, ruling that jurors were not properly told how to assess WhatsApp messages in which prosecutors alleged he offered to “buy her virginity”.
Enrique Adderley Jr, who was also convicted of four counts of indecent assault, will face a new trial after the appellate court found that the failure to direct the jury on the reliability and origins of the electronic messages rendered his convictions unsafe.
A Supreme Court jury convicted Adderley on February 6, 2025. He was sentenced the following August to eight years for attempted unlawful sexual intercourse and three years on each indecent assault count, with the sentences running concurrently.
The prosecution relied in part on WhatsApp messages provided by the virtual complainant, who alleged that Adderley sent them after the incidents and asked to take her out for her birthday and to “buy her virginity”.
However, Adderley’s attorney, Brendalee Rae, argued on appeal that police did not retrieve the messages directly from the girl’s cellphone and had not verified that they originated from Adderley’s phone.
The Director of Public Prosecutions opposed the appeal, arguing that the virtual complainant owned the cellphone and testified that the printed screenshots came from her device. Prosecutors also pointed out that it was Adderley’s defence counsel at trial who asked for the messages, which had initially been marked only for identification, to be admitted as an exhibit.
The Court of Appeal found that WhatsApp messages fell within the definition of electronic communications and were capable of being admitted as evidence. It also found that Adderley could not challenge their admission on that basis because his trial counsel had expressly asked for them to be tendered.
The problem, the court found, was what weight the jury should have given the messages.
The trial judge was required to direct jurors to consider matters set out in the Electronic Communications and Transactions Act, including the reliability of how the messages were generated, stored or transmitted; the integrity of the information; and the manner in which the originator was identified.
The appeal court found that the judge gave no adequate direction.
Because the authenticity of the WhatsApp messages was significant to the prosecution’s case, the court ruled that the omission meant the convictions could not safely stand.
“In the absence of such a direction,” the court said, “and given that it cannot be determined that the verdict would have been the same had the jury been properly directed, the conviction cannot safely stand.”
The allegations against Adderley covered several incidents between December 2019 and August 2021.
The virtual complainant testified that between December 2019 and January 2020, Adderley rubbed her thigh at their grandmother’s residence before blocking her from leaving the room, placing her hands behind her back and rubbing her chest and thigh areas.
She also alleged that during the same period, he entered a bathroom while she was inside, barricaded her in and forced her to perform a sexual act on him.
Another incident was alleged to have occurred between June 25 and June 30, 2021, while the girl was playing hide-and-seek with her younger sister.
She testified that she hid in her brother’s closet and Adderley followed her inside, pressed his body against her, pulled down her pants and wrestled with her before their grandmother approached after hearing a fan fall.
The prosecution further alleged that between July 5 and August 31, 2021, Adderley squeezed the girl’s breasts at Saunders Beach and again during the drive home.
She also alleged that during the same period he pushed her against a refrigerator at their grandmother’s residence, kissed her and slapped her on the hip as she walked away.
Adderley raised other challenges to his conviction, but the Court of Appeal rejected them.
His lawyers argued that the verdict was unsafe because the trial judge initially referred to the attempted unlawful sexual intercourse charge as attempted rape.
The appellate court found that the judge subsequently corrected the error.
Adderley also relied on alleged differences between the virtual complainant’s initial report to police and the statement that was printed and signed eight months later.
The court rejected that challenge as well, finding that any inconsistencies were matters of credibility for the jury to determine.
The WhatsApp evidence, however, was treated differently because jurors had not been given the legal guidance required to assess its reliability.
After considering whether the case should simply end or return to the Supreme Court, the Court of Appeal ordered a retrial.
“In the interest of justice,” the court said, “the question of the Appellant’s guilt or innocence ought to be determined in a criminal trial.”
The matter was remitted to the Supreme Court for retrial as soon as reasonably practicable.
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