THE COURT of Appeal has reserved its decision in a rape appeal which involves the use of DNA evidence in criminal trials.

The appeal was brought by a man who was convicted in 2018 of raping a minor in 2004.

Emerson “Roger” Richardson had been found not guilty of two counts of sexual intercourse with a female under 14, but guilty of one count of sexual intercourse with a female under 14.

Justice Hayden St Clair-Douglas sentenced him to 23 years’ hard labour.

At his appeal, which will be used to assist in providing guidance to judges and prosecutors in future cases involving DNA evidence, Richardson advanced five complaints about the trial judge’s handling of his case.

Justices of Appeal Alice Yorke-Soo Hon, Mark Mohammed and Maria Wilson are presiding over his appeal.

Richardson is represented by attorneys Senior Counsel Sophia Chote and Allan Anderson. Assistant DPP Sabrina Dougdeen-Jaglal and Nigel Pilgrim.

Among his complaints are that St Clair-Douglas erred in law by allowing him to be tried on fresh evidence which was not disclosed at the preliminary inquiry. He said he was only given a day's notice after the start of the trial to prepare his defence of the fresh evidence. It was on this evidence, Richardson was convicted.

The State countered that Richardson would have known of the incident to which the new count of rape was linked because of the evidence given at the preliminary inquiry and a conversation with the girl’s mother when he was caught after the act.

The prosecutors argued he would have also known at the time that human spermatozoa was found on the girl’s vaginal swab and he got the scientific report from the Forensic Science Centre (FSC) a week before the trial and before the expert scientific officer gave evidence. They said he could have asked for an adjournment, but did not, so he cannot now complain of the additional count being introduced, or the evidence to support it.

According to Richardson’s arguments, the semen linked to him found its way onto clothing belonging to the alleged victim after he had consensual sex with his accuser’s mother, who slept on the same bed as his accuser.

At Thursday’s virtual hearing, Pilgrim said his defence of “innocent transference” of the sperm into the girl’s vagina ought not to have changed because of the new disclosure.

“A summation is not a symphony or a sonic,” Pilgrim said, adding that on the basis of the guidance to judges on how to give directions to juries on DNA evidence, the judge in Richardson’s case could not go beyond the issue that was raised at trial,

“The judge could not add or supplant anything that was not raised in the defence,” he said.

Another of Richardson’s complaints was that the judge erred by failing to give adequate directions on the use of DNA evidence and it was because of this “grave” error that he was convicted by the jury.

His attorneys also argued that the judge should have held an admissibility-of-evidence hearing to determine if the DNA evidence should have been allowed.

The attorneys also p