Court of Appeal overturned child’s conviction and 12-year sentence for carnal knowledge

BELIZE CITY, Fri. June 21, 2019– This morning, the Court of Appeal handed down its decision in the criminal appeal of Juan Duenas v The Queen. Duenas had appealed his conviction and consequent 12-year sentence for carnal knowledge.

In their decision in Criminal Appeal No. 5 of 2011, the panel of Appeal justices, Sosa, Awich and Ducille, ruled to allow the appeal and to set aside the conviction and sentence. Their 14-page ruling ended saying, “We do not consider this an appropriate case for re-trial.”

The ruling by the Appeal justices thus means that the matter is at an end, except for the trauma suffered by the young man.

On September 17, 2009, a 15-year-old boy and a 13-year-old girl who had met each other at the house of one of their friends decided to have sex in a nearby abandoned house, in Punta Gorda Town, Toledo District.

What the boy did not know was that he had violated a section of the penal code of Belize which carries a mandatory minimum sentence of 12 years in prison, because of the girl’s age.

By January 12, 2010, he was arraigned in the Punta Gorda Magistrate’s Court on “one count of carnal knowledge of a female child contrary to Section 47 (1) of the Criminal Code. Chapter 101…”

On December 15, 2010, a preliminary inquiry was held and the minor was committed to stand trial in the Southern Session of the Supreme Court.

On February 1, he was in the Supreme Court and pleaded not guilty to the indictment on carnal knowledge. His trial date was set for February 28, and was then forwarded to February 23.

In a day and half, the boy, who was 16 years and 10 months old when he was convicted, was sentenced to 12 years in prison. He was unrepresented by an attorney at the trial.

He spent 6 years of his 12-year sentence in prison before he was released on bail when he filed an appeal of his sentence and conviction.

Essentially, what happened was that the safety net that should have been in place to prevent exactly this kind of scenario from occurring, is still not in place, so Belize’s criminal justice tried, convicted and sentenced a minor for a major crime, in violation of both domestic law and Belize’s treaty obligation under the International Convention on the Rights of the Child, which Belize signed in March 1990 and ratified in May 1990.

All of this happened without a word from the Special Envoy for Women and Children, and all of those other individuals whose government offices were established to look after the welfare of Belize’s children.

The Court of Appeal justices observed in their judgment that “at the time of the notice of the appeal, no grounds of appeal was filed, but two weeks before the trial, attorney for the applicant, Simeon Sampson, SC, filed two grounds of appeal.”

The first ground of appeal was that “the learned trial judge erred by omitting to advise the Applicant of the importance of obtaining legal representation for his trial; and more seriously, failed to adjourn the trial to enable representation; but instead, he brought forward the trial date, thereby aggravating the situation.”

The second ground of appeal was that “the learned trial judge (as appears from the Transcript) failed to offer proper assistance to the Applicant during his trial, as he was unrepresented and also failed to provide sufficient explanation and information as to the right of an Applicant, because there is a duty on a trial judge to advise and help in the interest of a fair trial which manifests equality under the law.”

A complete transcript of the Supreme Court trial was unavailable because the court’s recording system had failed. This was revealed at the case management conference for the appeal hearing.

Judge’s notes were used, but it was incomplete; and the transcript of the summing up of the case was missing, the judgment said.

Attorney Simeon Sampson, who represented Duenas, did not submit a skeleton argument in his appeal papers, but relied on the International Convention on the Rights of the Child (ICRC) and the Juvenile Offenders Act.

The Crown, represented by the Director of Public Prosecutions, opposed the appeal against conviction, but did not argue against the sentence of 12 years, when the appeal came up for hearing on June 8, 2016.

At the hearing, Sampson initially wanted to withdraw the appeal against the sentence, but later decided to keep that ground as well, the judgment noted.

The Appeal Court justices said that at the trial in the court below, the accused young man’s “cross-examination of her [the alleged ‘victim’] was a feeble attempt to prove that he was not the culprit who committed the act with her.”

His defense was a very short dock statement: “I did not have sex with her. I am innocent,” he proclaimed, “I did not have anything to do with her. That is it.”

“The judge’s summation is missing and the transcript of the trial does not reflect any assistance (if at all) being offered to the Applicant by the learned trial judge; the record does not show if the services of any officer from the Children’s Welfare Department, his parents or a friend, a legal representative, would have been necessary or appropriate. The Applicant in law was a child on trial for a crime with a minimum penalty of 12 years,” the judgment pointed out.

“The Convention on the Rights of the Child defines a child as anyone who is less than 18. It is exactly the same in the laws of Belize, and there are some other international human rights instruments protecting the rights of the child which has been adopted by Belize and enacted in principle into our Families and Children Act,” said the judgment.

In their “Discussion,” the Appeal justices wrote, “When one examines the submissions made on behalf of the Applicant, the crux of those arguments is that the Appellant was not afforded the protections and guarantees provided by law, particularly the Constitution and Article 40 of the ICRC to minors accused of committing a crime, and as such, his conviction is unsafe in all the circumstances of the case, and there has been a miscarriage of justice.”

The judges quoted from the former Chief Justice Abdulai Conteh, who had ruled that the Convention on the Rights of the Child does apply in Belize and that the principles in the First Schedule of the Families and Children Act can operate, where appropriate, in the sphere of the criminal justice system.

“In our estimation”, the judges said, “to hold otherwise would make a mockery of the rights and protection governing children accused of crimes afforded to the children of Belize by the Families and Children Act, which has adopted the ICRC”.