The attorney for convicted child rapist Colvin Norton, appealing a 28-year sentence, has argued that the medical examination performed on the then six-year-old victim was neither “thoroughly nor properly” done.
As a result, attorney Dexter Todd told Guyana’s Court of Appeal on Thursday that the conviction was both “unfair and unsatisfactorily.”
Todd, on behalf of the appellant, is contending that at the age of six, the “sexual injury” in the findings of the examining doctor should have been a lot more detailed.
Senior State Counsel Mercedes Glasford, however, refuted the arguments advanced by the appellant, stating that not only did the doctor perform a thorough examination, but that other pieces of evidence against the convict were “overwhelming” and together all resulted in a safe conviction.
Of the doctor’s observations, Todd took issue with what he said was the finding of “redness” to the child’s genitals, arguing that there “should have been some form of laceration; whether there was tenderness or tears, there should have been swelling, pain. There should have been a number of things as highlighted by experts in this area,” Todd said.
His main contention is that that reference to only redness indicates that neither a proper nor thorough examination had been done, which could have led the jury to speculate that that redness was as a result of “what they believed was a sexual assault.”
Back in April of 2018, a jury unanimously found Norton guilty on both counts of rape of a child under the age of 16. He had been charged with penetrating the child on August 1st, 2013 and then again on August 6th of the same year.
He was 19 years old at the time.
In handing down her sentence, Justice Jo-Ann Barlow had said that the convict appeared to have become emboldened, which was evident by him again raping the child a mere five days after the first assault.
Appealing his conviction and sentence, which he contends to be excessive, it is Norton’s contention that that the medical examination was not thoroughly done and that there were certain statements uttered by the trial judge which may have influenced the verdict arrived at by the jury.
During Thursday’s hearing before acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud, Todd told the Chancellor when asked that Norton had not been represented by counsel at trial.
He said that otherwise inexperienced, the now-appellant was himself ignorant of interrogating the testimony of the doctor, who was not cross-examined.
With the particular doctor having seen and examined the child, the Chancellor then enquired from Todd whether he was asking the Court to second-guess the findings against what textbook authors were saying—them not having seen the particular victim.
The lawyer said that what he was asking the court to do was to consider that Norton was at a disadvantage in not being able to cross-examine the doctor.
Lamenting that the doctor, according to him, had spoken only about “redness,” Justice Persaud pointed Todd to the record of appeal which noted of the doctor’s findings, “the hymen thinned…redness indicate irritation in the area. Something big trying to go in would cause the redness.”
Accepting that to have also been part of the medical findings, Todd then sought to explain to the judge that in sexual offences in which a six-year-old is alleged to have been raped, “the signs and medical examination of a child that age, could not be what was presented in this case.”
“Nowhere in the world do I think you would see a six-year-old being penetrated at the magnitude alleged by the State, and one would only see “redness and itching,” Todd declared.
In her rebuttal, however, Glasford said that there was nothing about the doctor’s findings that allowed for speculation on the part of the jury.
She said that in fact, the evidence of the doctor was not the only evidence relied on by the State, but that there was other overwhelming evidence against the appellant which led to a safe conviction.
She said it must be remembered that the child had herself testified of being raped by the convict, who she knew, and that she had been medically examined on the same day of the second assault which not only reveled “increased redness,” but further detailed that “the hymen was not intact.”
Glasford said that the doctor then went further to detail that the redness and irritation to the area was the result of forced penetration and that the redness would have indicated an irritation to the area and that “penetration was consistent with the redness.”
Glasford said the prosecution relied on the doctor’s evidence to show that the complainant was examined on August 6th, 2013 and that she had certain injuries which were consistent with the evidence that she gave in her testimony.
In addition, Glasford said that the prosecution also relied on the testimony of the child’s mother, who walked in on the convict raping her daughter on the second occasion.
To Todd’s contention that the injuries were not consistent, Glasford said that “penetration is defined by the Sexual Offences Act as any intrusion, however slight, and for however short a time of any part of a person’s body or of any object, into the vagina or anus of another person.”
The prosecutor said that in those circumstances, the verdict was not an unsafe one and that based on the evidence of all of the witnesses, there was nothing for the jury to have speculated on regarding the doctor’s evidence.
Stemming from the definition in the Act, regarding what constitutes penetration, Justice Gregory sought to enquire from Todd whether it was his submission that what was seen by the doctor did not fit the definition of “however slight.”
To this the lawyer said that the issue of “slightness” would have to be gleaned from evidence of the complainant which was not led at the trial.
“What the evidence is saying is that there was penetration. To infer thereafter that the penetration was slight would be only a “guesswork” and allowing the Court to jump into an act of speculation,” Todd argued.
He said that this was not an issue dealt with before the jury, and that there was also no comment by the trial judge or no clarity coming from witnesses.
Todd noted that even where the appellant was unrepresented, the Court still had an opportunity to clarify or to determine whether this was a slight penetration which would have resulted in just redness and itchiness in the victim.
On the issue of sentencing, Glasford said that the trial judge could have imposed the maximum of life in prison but instead gave 28 years, and, in accordance with legal precedent noted how she arrived at the sentence she imposed and what factors she considered therein.
With hearings completed in the matter, the appellate court has announced that it will send notices for ruling.
At sentencing, Justice Barlow had said that after raping the child on the first occasion, Norton then sought to silence the girl by declaring that if she said anything, her mother would not believe and would kill both of them.
Noting that the young girl’s mother had walked in and caught Norton “red handed” in the act during the second assault, the judge opined that he may have gone on to repeatedly assault the child.
The judge had told Norton that if there were a mitigating factor to consider on his behalf, it would be the fact that he was 19-years-old at the time of committing the offence. The judge was, however, quick to point out that his age in no way justified or excused the reprehensible act he perpetrated on the six-year-old.
On each count, the young man was sentenced to 24 years of jail time.
An additional four years were, however, added for the aggravating circumstance of the child’s mother having caught the convict raping her daughter five days after he would have first violated her.
Justice Barlow ordered that the sentences run concurrently.
Additionally, the court ordered that the convict be exposed to any sexual offence rehabilitation programmes offered by the prison service.
The court noted also that the young girl continues to receive counselling for the trauma she would have endured as a result of the assaults.
