Appellate court sets aside sex crime conviction

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Terry Herbert has spent the last five years of his life behind bars, serving time on conviction for having sex with a seven-year-old girl.

But this week the Court of Appeal ruled that the conviction was unsafe, so it was quashed.

Having set aside the conviction and sentence, the court did not order a retrial for the now 60-year-old man whose health is said to be failing, to include his eyesight.

The justices of appeal – Kelvin Baptiste, Mario Michel and Paul Webster – said the High Court trial judge erred in not giving certain directions to the jury.

These direction related to the medical evidence which showed the injuries did not match the timelines given for when the incident occurred.

The examination was done weeks after the alleged attacks were reported, yet the injuries were fresh and, according to the examiner, they appeared to be about three days old.

A jury had found Herbert guilty in October 2014 of two counts of unlawful sexual intercourse with the child and one count of serious indecency on her.

At trial, the court had heard that the incidents occurred in December 2010 at his home in Skerritt’s Pasture.

The victim had testified that she and her younger sister visited Herbert’s home frequently to fetch water, as they had no running water at home where they lived with their mother.

Herbert was well known to the victim’s family as he helped provide for the household.

On December 12th 2010 when the child went to the house without her younger sibling, the then 51-year-old man allegedly had sexual intercourse with her and further committed the act of serious indecency on her.

A few days after the first incident, the girl was again sent to the house for water and the middle-aged man allegedly had sex with her a second time.

The child told the court that she reported the matter to her mother who did nothing.

A few weeks later when school reopened she told

the school counsellor. The police were informed and a medical examination was done which showed the girl’s hymen was no longer intact.

But the bruises found were fresh and not healed as they would have been if the incident had happened when she said it did.

Herbert was later charged.

The child’s mother also testified at trial and when asked by Crown Counsel Shannon Jones-Gittens why she did not go to the police, she said she did not know.

The convicted man, represented then by attorney Michael Archibald, denied committing the acts.  

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