Appeal Court orders retrial for cameraman accused of raping girl, 13

Jul 25, 2019 News

By Feona Morrison

A man jailed for 25 years for raping a 13-year-old girl, had his conviction overturned at the Court of Appeal yesterday. A retrial has since been ordered by the court. The three-judge court presided over by Chief Justice Roxane George and Justices of Appeal Dawn Gregory and Rishi Persaud quashed the man’s conviction for rape after holding that his trial was unsatisfactory due to the trial Judge (Navindra Singh) admitting prejudicial evidence.

Andre Hetsberger

The evidence, the Court of Appeal said, is that of the virtual complaint’s grandmother, who said that the young girl had been previously molested by Hetsberger, prior to the rape offence for which Hetsberger was charged and tried. The Court of Appeal reasoned that the evidence was prejudicial on the basis that it had absolutely nothing to do with the matter for which Hetsberger was on trial. In fact, the appellate court also noted that the grandmother was never called to testify during the trial.
Holding for Hetsberger’s lawyer, Dexter Todd, was Adrian Smith, who inquired as to whether the court was minded to grant Hetsberger bail pending the hearing and determination of a new trial. Justice George, however, advised the lawyer to make a formal application for bail before the High Court. Meanwhile, Senior State Prosecutor Natasha Backer pointed out that arrangements will be made to have Hetsberger retried at the October session of the Demerara Criminal Assizes.
Now 40, Hetsberger was convicted on a unanimous jury verdict at the Demerara High Court in early 2016 for rape committed on the 13-year-old girl on October 17, 2014. Hetsberger had initially denied the allegation. In contesting the conviction and sentence, Attorney Todd had argued that the prosecution relied on circumstantial evidence, and the testimony of the virtual complainant who insisted that Hetsberger penetrated her one day.
Furthermore, Todd had argued that Justice Singh admitted evidence by the prosecution which was highly prejudicial to his client, and more so refused to admit evidence which supported his client’s defence. In this regard, the lawyer submitted that the trial judge failed to put his client’s case adequately, or at all, to the jury for consideration.
During arguments, Todd pointed out that a medical certificate, which indicated that the virtual complainant showed no signs of penetration was tendered into evidence by the prosecution. On the other hand, he said that there was the virtual complainant’s account of what transpired, in that she was penetrated by his client. According to Todd, the virtual complainant’s testimony was inconsistent with the medical certificate, and as such, the trial judge should have relied on the latter.

The Court of Appeal in its ruling, however, held that this ground of appeal had no merit, since corroboration between the medical evidence and the virtual complaint’s testimony was not necessary in accordance with the Sexual Offences Act.
Senior State Prosecutor Backer had earlier on asked the Court of Appeal to dismiss Todd’s argument that corroboration was needed. She argued that the virtual complainant’s testimony cannot be discredited since the Sexual Offence Act allows for evidence of such nature. According to the prosecutor, it is possible for someone who was sexually penetrated to not show signs of injuries.
Moreover, Todd had contended that the sentence imposed on his client was severe in all the circumstances. In support of this argument, he took issue with the fact that no probation report was prepared on his client’s background. However, Prosecutor Backer told the court that she was not aware that a probation report could have caused Hetsberger to receive a lighter sentence.
In light of these, Todd had insisted that the verdict of the jury was unreasonable and cannot be supported with regard to the evidence, and sought for it to be set aside and/or reversed.