nscavella@tribunemedia.net
THE Court of Appeal yesterday ordered a retrial for the son of former Governor General Sir Arthur Foulkes, who was previously sentenced to ten years in prison for sexually assaulting a 13-year-old girl entrusted to his wife’s care six years ago.
Appellate Justices Stella Crane-Scott, Roy Jones, and Milton Evans, quashed Joseph Foulkes’ conviction and sentence and allowed his appeal, before consequently remitting the matter to the Supreme Court for him to be retried at an “early” date.
Prior to that decision, Foulkes’ attorneys Christina Galanos and B’Jorn Ferguson relied on nine grounds of appeal in a bid to satisfy the court as to why their client’s extension of time application to appeal his sentence concerning the alleged 2012 incident should succeed.
However, the factors that proved crucial to the success of Foulkes’ application were two of his nine grounds, as well as an admission by Crown prosecutor Vernal Collie that Foulkes’ matter should have effectively been declared a mistrial based on the evidence given at trial.
On March 11, 2015, a Supreme Court jury returned a 7-2 guilty verdict against Foulkes for unlawful sexual intercourse concerning an incident that allegedly took place sometime between January 1, 2012 and June 30, 2012, but was not reported to the police until February in the following year.
He was sentenced to ten years in prison to run from the date of conviction.
A notice to appeal against conviction and sentence was filed on his behalf on June 2, 2015. However, pursuant to Section 17 of the Court of Appeal Act, Foulkes had 21 days in which to give notice of appeal or of his application for leave to appeal – by April 1, 2015, therefore, he was some 61 days late in doing so.
Prior to the verdict, Foulkes pleaded not guilty to the single count of unlawful sexual intercourse with which he was charged.
At trial, the virtual complainant testified that on a Sunday morning during the period in question, she was at Foulkes’ wife’s house, a normal practice for her on weekends. The accused had taken his wife to work before returning to the house to inform his son that he was going to take him to church.
When he returned from taking the child to church, he came into the bedroom where the victim was watching television and sat on the bed before putting his hand on her chest and telling her to get out of the bed. She hesitated, but once she was out of the bed, he told her to take off her clothes, which she did.
He then told her to look him in his eye, and when she looked into his eyes as instructed, he told her he would choke her and kill her if she told anyone about his actions. She told the court she was asked to disrobe and that her alleged attacker instructed her to bend over near the dresser. He then proceeded to have sex with her for five to ten minutes.
“I told him I was hurting and he told me to shut up,” the girl said while testifying previously, adding that after he was done, the man finally let her go to clean up.
She said her abdominal area and genitals were in pain when she urinated and upon wiping herself, she saw blood. Moments later, the man entered the bathroom and tossed her clothes at her to get dressed.
The girl said she declined to immediately report the sexual assault because she was threatened and did not want to ruin her good relationship with the wife of her attacker. The virtual complainant said Foulkes had never been inappropriate with her on previous occasions when she was alone with him.
Yesterday, Ms Galanos, in acknowledging the four factors the court considers in deliberating on extension of time applications, proffered nine grounds of appeal pursuant to the satisfaction of the second factor.
Those grounds included, but were not limited to, that the trial judge erred when he permitted the Crown to ask a witness for the prosecution about an allegation levied against Foulkes of a similar nature, and that the judge erred when he did not declare a mistrial after conceding that he did not believe that any foundation was laid for the Crown to go as far as it did in questioning a witness for the prosecution about allegations of a similar nature levied against Foulkes.
Regarding the former, Ms Galanos charged that before the Crown commenced its re-examination of the virtual complainant’s aunt in the absence of the jury, it made an application pursuant to Section 29 of the Evidence Act to enter evidence of Foulkes’ bad character on the basis that defence counsel asked their witness whether she was aware of Foulkes being accused of anything similar to the charge of unlawful sexual intercourse (to which the aunt’s reply was no), and that they were aware that the Department of Social Services had to remove Foulkes’ son from the home for a similar allegation.
Initially, the trial judge told the Crown he would not be prepared to allow prosecutors to embark on the line of questioning until he saw a report from the DSS. The Crown conceded that it did not have the report in its possession but intended to obtain it. However, the judge told the Crown he didn’t understand why the prosecution would make such an application without being in possession of the report.
The trial judge took the position that as defence counsel opened the door on the issue, the Crown would be permitted to pursue the line of questioning in re-examination.
Ms Galanos thus submitted that the trial judge erred in allowing that line of questioning because the Crown was relying on allegations and not a conviction, and should have not been allowed to proceed; there was no evidence before the Court at that time that Foulkes was present to refute the allegation, thus making it “hearsay”; and that it was more prejudicial than probative.
Regarding the latter ground, which Ms Galanos submitted was an extension of the former ground, it was contended that the trial judge ought to have declared a mistrial after the “extremely damaging and inadmissible evidence was canvassed before the jury by the Crown.” She noted that the trial judge attempted during his summation to warn the jury not to consider the evidence in deliberating on a verdict.
However, Ms Galanos submitted that the damage had already been done and the trial judge was unreasonably “expecting the jury to perform a nearly impossible task”.
Mr Collie, in response to Ms Galanos, noted that upon the Crown’s perusal of the evidence and the trial judge’s summing up of the facts of the case, the Crown had some concerns relative to the lack of direction pertaining to the bad character reference, as well as the admissibility of hearsay evidence.
“Perhaps it might have been better for the judge to discharge the jury at that stage,” he told the court.
Mr Collie then suggested that there was a good chance that some of Foulkes’ grounds would have a good prospect of success, but he needed more time to properly file submissions in response to same, which would mean an adjournment in the matter.
However, Justice Crane-Scott questioned Mr Collie for intimating that he would need an adjournment, stating that although he did not properly file submissions concerning the substantive appeal, because he already conceded that a mistrial ought to have been declared, there would be no reason to delay the inevitable.
The court then moved to allow Foulkes’ extension of time application to succeed, quash his conviction and sentence and allow his appeal.
