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Court states why it rejected JP’s indecent assault conviction appeal | Loop Jamaica

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A justice of the peace (JP) in St Catherine has failed in his bid to overturn his conviction and six-month prison sentence for indecently assaulting an 11-year-old girl in 2018.

Seymour Cole, a former Jamaica Defence Force (JDF) member, was tried on a number of days between January 3 and July 8, 2020.

He was convicted on January 4, 2021 by then Parish Judge, Tara Carr (now Supreme Court judge), and sentenced to six months’ imprisonment at hard labour.

However, Cole appealed both the conviction and the sentence, and was granted bail ahead of the hearing of his appeal.

According to Friday’s Court of Appeal judgment, it was alleged that the assault of the girl, referred to as “AA”, occurred on August 22, 2018 between 4pm and 5pm.

The girl was in a yard containing five houses, when Cole called her to his house and carried out the assault.

The girl testified that Cole started hugging her and “rubbing (her) body, over (both) breasts”.

Despite the girl resisting the advances and touching, Cole allegedly fondled her vagina and continued fondling her other body parts, according to the judgment written by Court of Appeal judge, Justice Paulette Williams.

The girl eventually told her mother after crying when she was home, and a report was made to the police the same day, and Cole was later arrested and charged.

Under cross-examination at the trial, the girl admitted that while leaving Cole’s house, she did not tell his (Cole’s) child’s mother what had happened.

“She accepted that although there were multiple houses in close proximity in the yard, she never shouted ‘Stop’,” the judgment outlined.

It added that, “While AA (the complainant) admitted that her mother was a strong disciplinarian, she denied she had only started crying because she had eaten a cake and was afraid of the repercussions.

“AA agreed that Mr Cole was very cordial with her and treated her as a relative,” the judgment further stated.

But the girl denied that Cole would often “hug her playfully”. She also denied that she was a habitual liar, and had concocted the incident.

At the trial, Cole gave sworn testimony, during which he said he had no previous conviction and had fathered nine children. He also said he was of good character, as he was a JP; he had served in the JDF for 11 years; and served five years as a social worker.

Cole testified that on the day in question, he returned to the house and was unpacking groceries when he saw the complainant open a room door forcefully.

He said he informed the girl that his daughter was sleeping, and instructed her (the complainant) to go home. He said he did not see her for the rest of the day.

While accepting that the testimony of the complainant did not flow “sequentially”, the then parish judge found Cole guilty of indecent assault.

She paid due regard to Cole’s good character, but rejected his defence, “as she found him to be untruthful in several aspects,” the Appeal Court said.

Cole appealed his sentence and conviction, arguing that the trial judge “failed to consider or to adequately consider that AA and Mr Cole have frequently interacted together (often with no one else), and (he) treated her as a relative in a cordial and wholesome relationship.”

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The appellant also contended that the learned parish judge “erred when she trivalised, minimised and rejected an element of the defence that the motive for AA (the complainant) lying… that she had eaten a slice of cake and feared discipline from her mother.”

Cole was represented by attorney Patrick Bailey at the appeal hearing.

The Court of Appeal panel comprising Justice Williams, Justice Nicole Simmons and Justice Vivienne Harris, rejected the assertions that were made by the appellant, pointing out that at all times, the trial judge cautioned herself about the shortcomings of the complainant’s testimony, and she recognised Cole’s good character.

In relation to the allegation relative to the cake, the Court of Appeal judges said the parish judge concluded rightfully that, “There was no reason for (AA) to lie.

“There is no explanation for such a lie that satisfies this court,” the parish judge then said at Cole’s trial.

The Court of Appeal judges, in light of the foregoing, said it was “clear that the learned Judge of the Parish Court indicated the evidence she accepted, the evidence she rejected, and the basis for doing so.

“Based on the thorough and detailed manner in which the learned Judge of the Parish Court explored the issue, we disagree with Mr Bailey that she had ‘trivalised, minimised and rejected an element of the defence’,” the Appeal Court judges determined.

In dismissing the appeal against conviction and sentence, the Appeal Court affirmed Cole’s six-month sentence, and ordered that it should begin on Friday, July 1.

However, a period of one month and seven days (January 4 to February 12, 2021) “shall be treated as term already served,” the court ordered.

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