DEREK ACHONG

A woman, who was raped when she was a teenag­er, has been giv­en the green light to pur­sue a fi­nal ap­peal in her law­suit al­leg­ing that her con­sti­tu­tion­al rights were breached by de­lays in pros­e­cut­ing her at­tack­er.

Ap­pel­late Judges Mark Mo­hammed, Maria Wil­son, and James Aboud grant­ed the woman, who can­not be iden­ti­fied as she is a vic­tim of a sex­u­al of­fence, leave to pur­sue an ap­peal be­fore the Unit­ed King­dom-based Privy Coun­cil.

The leave ap­pli­ca­tion was chal­lenged by State at­tor­neys but was ap­proved by the ap­peal pan­el, which ruled that there are gen­uine­ly dis­putable le­gal is­sues which are fit for the coun­try’s high­est ap­pel­late court to weigh in on.

In the fi­nal ap­peal, the woman, who is now 23 years old, is con­tend­ing that the Court of Ap­peal got it wrong in Ju­ly when it ruled that a High Court Judge erred in up­hold­ing her case in Sep­tem­ber, last year.

In their judg­ment, Jus­tices Mo­hammed, Pe­ter Ra­jku­mar, and Wil­son ruled that her rights to se­cu­ri­ty of the per­son ex­cept by due process of law and pro­tec­tion of the law un­der Sec­tions 4(a) and (b) of the Con­sti­tu­tion were not breached and she was not en­ti­tled to the de­c­la­ra­tions and the $60,000 in com­pen­sa­tion she re­ceived.

The woman was at­tacked on March 31, 2017, when she was 16-years-old.

Sev­en months lat­er, her at­tack­er, who lived near her, was ar­rest­ed and charged with sex­u­al pen­e­tra­tion of a child.

She be­came preg­nant af­ter the rape and kept the child as her moth­er dis­cour­aged her from hav­ing an abor­tion.

She was di­ag­nosed with sev­er­al psy­cho­log­i­cal ill­ness­es in­clud­ing post-trau­mat­ic stress dis­or­der (PTSD), de­pres­sion and anx­i­ety. She al­so at­tempt­ed to self-harm sev­er­al times.

Her lawyers, led by Lee Mer­ry, SC, filed the law­suit as it took a lit­tle over five years for her at­tack­er to be com­mit­ted to stand tri­al af­ter a pre­lim­i­nary in­quiry.

The ap­peal pan­el ruled that cit­i­zens did not have a right to a speedy tri­al un­der the Con­sti­tu­tion.

“The in­eluctable con­clu­sion is that the omis­sion of a right to a speedy tri­al or to a tri­al with­in a rea­son­able time must have been a de­lib­er­ate de­ci­sion on the part of the con­sti­tu­tion­al framers,” Jus­tice Mo­hammed said.

He al­so dis­agreed that her right to se­cu­ri­ty of the per­son was in­fringed as she suf­fered the trau­ma of be­ing chas­tised and hu­mil­i­at­ed by her at­tack­er’s de­fence at­tor­ney dur­ing his pro­tract­ed crim­i­nal pro­ceed­ings.

Not­ing that the woman’s lawyers claimed that the de­lays and ad­journ­ments ex­ac­er­bat­ed the psy­cho­log­i­cal trau­ma caused by the al­leged sex­u­al as­sault, Jus­tice Mo­hammed not­ed that the orig­i­nal source of the trau­ma was the at­tack.

He al­so point­ed out that her ex­pert wit­ness, clin­i­cal psy­chol­o­gist Isol­de Ali Ghent-Gar­cia, could not dis­ag­gre­gate the trau­ma from the as­sault, from her bear­ing a child and the de­layed crim­i­nal pro­ceed­ings.

Jus­tice Mo­hammed not­ed that even if the link could have been proven, her con­sti­tu­tion­al right to se­cu­ri­ty of the per­son was still not breached as she had due process av­enues of re­dress in­clud­ing high­light­ing the ef­fect of the de­lays on her to the mag­is­trate pre­sid­ing over the case and the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP).

How­ev­er, Jus­tice Mo­hammed ac­knowl­edged the crime surge af­fect­ing the coun­try, as he stat­ed that the phys­i­cal, psy­cho­log­i­cal and fi­nan­cial con­se­quences of such will con­tin­ue even if the crim­i­nal jus­tice sys­tem has not dealt with al­leged per­pe­tra­tors.

Jus­tice Mo­hammed said: “Notwith­stand­ing the con­clu­sions above, it must be said that the sit­u­a­tion of vic­tims of crime needs to be recog­nised and ad­dressed in a sen­si­tive, prac­ti­cal, and mean­ing­ful way.”

“How­ev­er, these are mat­ters which have po­lit­i­cal, ad­min­is­tra­tive, leg­isla­tive, and fi­nan­cial im­pli­ca­tions which can­not prop­er­ly be ad­dressed by a Court’s read­ing in­to the Con­sti­tu­tion a right which nei­ther its lan­guage, struc­ture, nor prece­dent per­mit,” he added.

De­spite the out­come of the ap­peal, the woman was not or­dered to pay the State’s le­gal costs for de­fend­ing the case be­cause of its con­sti­tu­tion­al im­por­tance.

The woman was al­so rep­re­sent­ed by Lar­ry Boy­er. Rishi Dass, SC, Coreen Find­ley and Sasha Sukhram rep­re­sent­ed the Of­fice of the At­tor­ney Gen­er­al.