CMC: A man who sentenced in 2012 to 43 years in prison for rape, aggravated burglary, and wounding has been acquitted of those charges after a fourth trial.
A jury of five women and four men returned not guilty verdicts on each count of Jolan Hepburn’s indictment on Tuesday. He had been accused of committing the offences between April 20 and 23, 2011.
Defence counsel Michael Wyllie, who represented Hepburn, successfully argued that the virtual complainant had misidentified his client as her assailant.
“The most ridiculous issue, in this case, is that the police had in their possession the two most definitive pieces of scientific evidence to establish the identity of a person and did not utilise them – that is, DNA and fingerprint. No two persons have the same DNA or fingerprints, not even twins,” Wyllie told CMC News after his client’s acquittal.
The trial hinged on the identity of the man who the virtual complainant (VC) said raped her after striking her in the head in her home in April 2012 and the defence argued that several things went wrong with the ID parade.
Wyllie also argued that the description the VC gave police of the assailant in her statement was different from what she gave in her evidence-in-chief.
“Identification evidence is the most unreliable form of evidence,” the defence attorney said, noting that the Court of Appeal was so concerned by the possibility of mistaken identification that it issued the Turnbull guidelines which direct the trial judge to inform the jury about the need for caution when accessing identification evidence.
Wyllie also noted that the woman had testified that her assailant had placed a plastic bag over his penis before raping her but evidence was not secured.
“The police recovered the plastic bag with the sperms that were allegedly discharged by the assailant and did not test it for DNA nor did they conduct a fingerprint examination of the Pyrex dish that the assailant reportedly used to strike the VC in her forehead, nor any of the other things that the assailant allegedly touched in her house,” the lawyer said.
“According to the VC, the assailant was not wearing any gloves. Therefore, it would have been relatively easy to recover fingerprints from the things he touched.”
The trial heard that investigators requested that the semen and Pyrex dish be sent overseas for analysis but this was not done.
“…. It is most unfair and irresponsible of any government not to put the necessary mechanisms in place to conclusively prove or disprove the identity and guilt or innocence of an accused. This is a high mark of injustice,” Wyllie said.
Hepburn did not have a lawyer in 2012 when the jury found him guilty of all charges after deliberating for two hours and 47 minutes following a trial before Justice Frederick Bruce-Lyle.
During that trial, in the absence of the jury, Bruce-Lyle had told Hepburn that the evidence against him was overwhelming and that if the jury found him guilty, he would sentence him “heavily”.
The virtual complainant, then in her 40s, told the court that she was awoken by a noise, having secured her home before going to bed.
Initially, she dismissed the noise because she lived close to the main road. However, she later decided to look into the source of the noise and her attacker struck her over the head with a Pyrex dish as she opened her bedroom.
The woman told the court that the assailant was wearing a cap but she saw his face and that he was armed with a knife. She said the man had sex with her using a plastic bag as a condom after she told him — in an attempt to prevent rape — that she had AIDS.
Hepburn, however, maintained his innocence, telling the court that he was at home at the time of the incident.
There were inconsistencies in the evidence of his mother and uncle, who testified on his behalf.
Bruce-Lyle sentenced Hepburn to 43 years in prison — 18 for rape, 18 for aggravated burglary, and seven for wounding — ordering him to spend a total of 18 years in prison as some of the sentences ran concurrently.
On November 15, 2012, Hepburn appealed his conviction and sentence on the grounds that the judge erred in law when he allowed evidence of the applicant’s bad character to be adduced into evidence, that the judge erred in law when he allowed hearsay evidence to be adduced; and that the judge did not properly direct the jury with regard to identification evidence.
On April 21, 2016, the Court Appeal allowed the appeal against Hepburn’s conviction, quashed the conviction and set the sentence aside, and ordered that Hepburn be retried.
In February 2020, the second trial began before Justice Brian Cottle.
The trial ended on February 7 after a few days of the trial, when one of the jurors revealed that she was related to the investigating police officer.
The prosecutor, Renee Simmons, wanted to dismiss that juror and continue the trial with eight jurors, but Wyllie objected. Justice Cottle declared a mistrial and ordered the trial be conducted before a differently constituted court.
The third trial began on May 17, 2021 and Simmons informed the court that a witness in the case had said that he had overheard the jurors discussing the case in the jury room even before the trial had started.
The jurors were reportedly questioning why the prosecution was proceeding with the matter after so many years.
The prosecution felt that was biased in favour of the accused and made an application for the jury to be discharged.
Justice Angelica Teelucksingh, who was presiding, conducted an inquiry into the matter by questioning the jurors about the alleged comment.
Wyllie did not object to the application to discharge the jury, saying that the accused felt, and he agreed, that the jury might have felt pressured to find him guilty to disprove their alleged bias.
On May 20, Justice Teelucksingh discharged the jury based on the allegedly overheard comments from the jury room.
The final trial began on December 7, 2021 before Justice Teelucksingh and was interrupted several times because of COVID-19 infections or other ailments among persons involved.