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UPDATE – Andre Penn granted bail!
The actual bail offer and conditions are sketchy at the moment, but Virgin Islands News Online understands Penn is back home with his wife and family.
His freedom, until his trial begins, was as a result of the failure of trial judge Indra Hariprashad-Charles to give warning or clear explanation to jurors regarding the unreliability of evidence given by a child was fatal in the Andre Penn case, according to appeal Justice David Baptiste.
In handing down the judgement in the Andre Penn’s appeal this yesterday afternoon January 17, 2012 in the Court of Appeal, Judge Baptiste stated that the evidence that was given by virtual complainant (VC) was the only one connecting Penn to the alleged offenses.
As first reported by this news agency, an application for the appeal was made the same day – March 2, 2011 – when he was found guilty of having sexual intercourse with a girl under the age of 13, buggery and indecent assault. The VC was his guardian.
The Justice Baptiste, who headed the three panel team, outlined the grounds of appeal that were advanced including the trial Judge’s failure to give such a warning as required by Section 146 of the Evidence Act 2006 of dangers of relying on the evidence of a child complainant.
He gave a breakdown of the section including Section 2 which stated that where there is a jury, the court shall, unless there are good grounds for not doing so, (a) warn the jury that the evidence may be unreliable ( b) inform the jury of matters that may cause the evidence to be unreliable and (c) warn the jury of the need for caution to determine whether to accept the evidence and the weight to be given to it.
He summarized that it was argued by the Penn’s lawyer, Edward Fitzgerald QC and conceded by the Director of Public Prosecution Elizabeth Hinds that this section requires a warning with respect to a child witness and secondly, it was advanced by the defense for the appellant and later conceded by the DPP that no specific warning was given by the judge. It was also advanced by Counsel for the appellant and conceded by the DPP that no explanation was given by the Judge for not giving a warning.
While DPP Hinds did advance that though Justice Charles did not give a specific warning and that there were things said by the judge that could have been amounted to the warning, Justice Baptiste said in the Court of Appeal’s view, the trial judge’s statements did not meet the requirements of the section.
One of such sections that was pointed out by the DPP of which she said Justice Charles had made statements that amounted to a warning was: “Foreman and members of the Jury if you find that everything that (complainant name withheld) said to you is a pack of lies, that she is a chronic liar, as the defends alleges, and that she has made up everything then set this man free.”
Earlier this morning during the submissions by made by Fitzgerald QC, one of Penn’s lawyers, indicated that Penn may not have had a fair as a result of the clear warning not being given to the jurors.
While the Director of Public Prosecutions Elizabeth Hinds had argued that statements made on different occasions by the judge can have the same effect as the warning, the Penn’s lawyer Edward Fitzgerald QC argued otherwise and so did the three judges who pointed out that the statements Justice Charles gave were not sufficient to serve as a warning to the jurors required in the case of a child witness.
The arguments had then surfaced as to whether there should be a retrial or not. The defense had said based on the whole case where Penn already served a year, subjected to a tremendous ordeal and the publicity, a retrial was not fair.DPP Hinds had argued that Penn did not serve enough time, only one year of his 12 year sentence and it would be unfair to the victim who would have to live with it for the rest of her life.
Appeal BackgroundOn March 2, 2011, Penn had filed his application for appeal after he was found guilty of the alleged offenses.
In a three-page letter to the Appeal Court, Penn had outlined more than 10 reasons why he was appealing his conviction. According to him, he was deprived of the right to a fair trial as stated in the Virgin Islands Constitution Order of 2006.
He had pointed to the fact that the wide spread adverse publicity about him and the charges against him before, during and after his trial, including the Internet, online media and blogs, were reported which was out of “context, skewed, unfavourable and misleading”.
Furthermore, the then convicted man had stated that the presiding Judge Indra Hariprashad-Charles should have recused herself from the trial since she participated in a public march in November 2010 for child abuse which was organised by some of the prosecution’s witnesses in his trial.
“This led or could have lead to the perception, and certainly led me to the feeling that my trial was not proceeding before and entirely unbiased tribunal,” an excerpt of the appeal stated.
He also blamed the selection process of the jury, which comprised of eight females and one male, which he believed leaned in favour of the Crown’s case. The former legislator also claimed that during jury selection the prosecution had more than five potential male jurors on standby before they were successful in acquiring nearly ‘an all’ female jury.
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The final update! Conviction affirmed and sentence affirmed.