Lawyer challenges doctor’s examination of 6-year-old rape victim

…in appeal against client’s conviction, 28-year jail time

Evidence about a medical examination conducted on a six-year-old girl, who was raped by a man back in 2013, is being challenged at the Guyana Court of Appeal by the convict’s Attorney-at-Law Dexter Todd, who is seeking to have his client’s conviction and 28-year jail sentence set aside.

Led by Chancellor of the Judiciary (ag) Justice Yonette Cummings-Edwards, the appellate court on Thursday opened arguments in an appeal filed by 28-year-old Colvin Norton, who in 2018 was convicted by a 12-member mixed jury of raping the underage girl.
The charges against Norton had stated that he sexually penetrated the child on August 1, 2013, and then again on August 6 of that same year in the county of Demerara. He was 19 years old at the time.
For the first count, he was sentenced to 24 years in prison, however, on the second count, trial Judge Jo Ann Barlow added four more years for aggravating factors, thereby sentencing him to 28 years on the latter. The two sentences were ordered to be served concurrently.

Not properly examined
While Todd advanced several grounds on which he is seeking to have the decision of the lower court quashed, he particularly challenged the evidence given by a female doctor who examined the girl.
“Whether the victim was properly examined by the doctor and whether on conclusion of the evidence of the doctor, whether the jury was invited to speculate as it relates to what the doctor said she discovered,” he said.
At the age of six, he reasoned that the sexual injuries shown on the child as observed by the doctor should have been “a lot more” given what is detailed in the Color Atlas of Sexual Assault—a clinical resource for practitioners who assess and treat sexually assaulted adolescents and adults. Todd submitted that at that age, there should have been some form of lacerations and tears and swelling and pain as highlighted by the experts in the book. The doctor, in this case, Todd noted, only testified to observing “redness” at the girl’s private area.
“In that by itself… the appellant maintains that the examination of the doctor was not a proper and thorough examination and therefore, it allowed the jury to speculate that that redness was as a result of what they believe was a sexual assault…” the defence lawyer argued.
According to Todd, during her testimony, the doctor said that this was her first time conducting an examination in a sexual offence matter and that it was also her first time appearing in court to testify in the case.
However, Justice Cummings-Edwards interjected, inquiring of Todd if he was asking the court to “second guess” the doctor who was deemed an expert and who examined the child to what is written in a textbook.
“The doctor would have seen the victim, and the doctor, based on her examinations, made the findings. You are asking the court now, to second guess the findings against what the textbook authors are saying, them having not seen the particular victim…” the Chancellor responded.
But counsel sought to explain that he was asking the court to consider that while the medical practitioner documented her findings, because of the inexperience of his client who was unrepresented at his trial in relation to asking important questions of the doctor, her evidence was left without any “proper interrogation”.
Concerning whether the trial Judge’s direction was able to bring clarification to the doctor’s report, Todd said, “All that was mentioned in the summing up is that the doctor could only give evidence of what the doctor saw but cannot say whether it was [Norton] who committed the offence.
He added, “While I accept that that is a very reasoned summing up, in terms of the comment of the Judge, there was no further explanation in relation to the fact that maybe at this age, for them [jurors] to consider, whether there was a proper examination of the witness.”
For his part, Justice of Appeal Rishi Persaud highlighted certain sections of the record of the appeal, stating that on page 14, “it says that… redness indicated irritation in the area…something big trying to go in would cause the redness…at that age the area is small…”
“This is not a case where the doctor only said redness,” Justice Persaud added. Todd, however, contended that, that statement “in itself” could not have been left “just like that”. “Something big trying to go in”, he repeated, while noting that the medical examination was deficient and “could not be what was presented in this case…”

Overwhelming
Senior State Counsel Mercedes Glasford rejected Todd’s contention that the jury’s verdict was unsafe as they were left to speculate on the doctor’s evidence. She noted that the doctor’s evidence was not the only evidence relied on by the prosecution to convict Norton.
“The evidence, in this case, was overwhelming. The complainant was six years old at the time of the commission of this offence. The complainant gave evidence of the appellant sexually penetrating her…” she said.
Glasford continued, “The doctor found that the outer vagina was healthy. The hymen was not intact, the area around the vagina had increased redness. The doctor explained that the redness and irritation of the area were a result of forced penetration.”
According to the State counsel, the doctor also clarified that the redness would indicate an irritation to the area which could be caused by “something very big trying to force itself into something very small”.

Because the outer area of the vagina is small at that age, the prosecutor said that the doctor explained that if “something extra big” is trying to go through there, you will have increased redness in that area.
The doctor also stated that penetration is consistent with the redness she observed around the little girl’s vagina, she added.
Penetration, as defined by Guyana’s Sexual Offences Act, Glasford noted, means 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.
Moreover, in addressing Norton’s contention that his sentence was excessive and wrong in principle, Glasford submitted that this is not so, since the maximum punishment for rape is life imprisonment.
She said that before passing sentence, the trial Judge stated reasons for her starting point and also considered all the relevant factors, including aggravating and mitigating factors and a victim impact statement.
Based on the principles outlined in the Caribbean Court of Justice (CCJ) cases of Linton Pompey v the Director of Public Prosecutions (DPP) of Guyana, and Calvin Ramcharran v the DPP of Guyana, she said that the sentences imposed on each of the two counts of rape were appropriate.
Following arguments, the Court of Appeal reserved its decision.

Background
The court heard that Norton was caught in the act by the child’s mother on the second occasion. It was revealed that after he raped the child, he told her not to tell anyone as her mother would not believe her.
It was also revealed that he threatened the girl, that if she told her mother, he would kill both her and her mother.
After sentencing Norton, Justice Barlow had ordered that he be exposed for programmes tailored for sexual offence convicts. Given his admission that he could not read and write properly, the Judge also instructed that he be enlisted in literacy programmes offered by the Prison Service. (G1)