Four years after being accused of rape and indecent assault, Herbert Anthony Walker was found not guilty of both charges and freed.
The incidents leading to the charges against him occurred in May 2003. A Grand Court jury found him guilty in April 2004.
Granted bail so that a pre-sentencing report could be prepared, Walker took his twin brother’s passport and left the island. His bail bond had been set in the sum of $15,000; his surety ended up having to forfeit $12,000 because he absconded.
In his absence, Walker was sentenced to eight years imprisonment for the rape and two years concurrent for the indecent assault.
Walker returned to Cayman from Jamaica in May 2005 after authorities here began the process for extradition. He went into custody and began serving his sentence.
In April this year, Defence Attorney Nicholas Dixey argued Walker’s case before the Court of Appeal.
Although Walker had absconded and had not followed the correct procedure for appealing, there was a danger of miscarriage of justice, Mr. Dixey said.
He argued that the trial judge had failed to give jurors directions on the issue of good character, including propensity and credibility. That is, whether a man who has not offended before was likely to have committed the offence and whether he was likely to lie about it.
In this case, Walker admitted that intercourse had taken place, but he said it was consensual.
Mr. Dixey also argued that the trial judge had not dealt appropriately with hearsay evidence. The complainant had told the court that someone told her that Walker was a monster and wanted sex with every woman he saw.
That was hearsay, which should not have been admitted, and there was danger that the remark would have prejudiced the jury against Walker.
The Court of Appeal allowed the appeal and quashed Walker’s convictions. The judges ordered a retrial and said Walker should be given priority. He remained in custody.
Walker chose to be tried by judge alone and his new trial took place the week of 2 July before Justice Priya Levers.
Senior Crown Counsel Gail Johnson conducted the case for the prosecution and Mr. Dixey defended.
Both sides agreed that the issue was the credibility of the woman who made the complaints against Walker.
Ms Johnson agreed that there was no corroboration. But she pointed out that the woman had maintained her story from the beginning. Even if there were sexual conversations between her and Walker, a woman has the right to say no at any time, Ms Johnson said.
Mr. Dixey cited inconsistencies in the woman’s story. One thing that did not make sense, he said, was the fact that during the alleged rape, Walker left the room to get a condom. The woman had every opportunity to escape or communicate distress or arm herself against an aggressor.
He said the woman made her complaint six days after the event because she wanted to protect herself from gossip.
In finding Walker not guilty, Justice Levers noted that the woman was staying in the same house with Walker and a relative of his. After the alleged indecent assault she did not move out and she did not tell anyone.
On the night of the alleged rape, the relative went out, leaving Walker and the woman eating dinner. When the relative returned, they were both sitting on the couch and their behaviour was normal. There was nothing to indicate that anything violent had taken place.
There was no corroborative evidence – forensic or otherwise, the judge said. To prove guilt, the Crown had to negative the defence of consent.
After considering all the facts, the judge had doubts and therefore acquitted Walker.