HM the Queen Respondent v Jeffrey Barnes Appellant
| Jurisdiction | Cayman Islands |
| Judge | Morrison |
| Judgment Date | 20 November 2015 |
| Court | Court of Appeal (Cayman Islands) |
| Docket Number | Criminal Appeal No 21/2013 C05425/2011 |
| Date | 20 November 2015 |
Hon Elliott Mottley, Justice of Appeal
Hon Dennis Morrison, Justice of Appeal
Hon Sir Richard Field, Justice of Appeal
Mr Michael Wood QC and Mr Nicholas Dixey of Nelsons for the Appellant.
Ms Cheryll Richards QC, Director of Public Prosecutions, and Ms Candia James for the Crown.
Morrison JA
This is an application for leave to appeal against conviction and sentence, after a trial in the Grand Court before Quin J and a jury. The appellant was convicted on all three counts of an indictment charging him with aggravated burglary and two counts of rape and, on 23 September 2013, he was sentenced to imprisonment for life. On 24 July 2015, we granted the application for leave to appeal against conviction and the court treated the hearing of the application as the hearing of the appeal. For reasons which were later promised, the appeal was dismissed and the appellant's conviction affirmed.
As regards the question of sentence, the appellant's challenge to the sentences of life imprisonment is in part based on the contention that the statutory provisions under which a discretionary life sentence was imposed on him are in breach of Article 3 of the Cayman Islands Bill of Rights. When the matter came on for hearing on 21 July 2015, the learned Director alerted us to Order 77A, rule 3(a) of the Cayman Islands Grand Court Rules 1995, which requires that in these circumstances the Honourable Attorney General must be notified in order to enable him to determine whether he wishes to intervene in the proceedings. It was therefore decided, with the agreement of counsel, that in order to facilitate this process the issue of sentence should be dealt with separately and at a later date. Accordingly, we granted leave to appeal against sentence, directed that the Attorney General should be served with all papers in the matter no later than 31 July 2015 and fixed the appeal against sentence for hearing at the November session of the court.
These are our reasons for dismissing the appeal against conviction. The issues which arose on the appeal were (i) whether, by reason of pre-trial publicity adverse to the appellant, the trial judge should have stayed the trial as an abuse of the process of the court; or alternatively, whether the trial judge's directions to the jury were sufficient to cure any prejudice occasioned to the appellant by the publicity and to ensure that he was afforded a fair trial; (ii) whether the trial judge gave adequate directions to the jury as to the elements of the offence of aggravated burglary; and (iii) whether the judge's directions to the jury on the effect of the appellant's failure to answer questions put to him in his police interview were appropriate.
The appellant was originally charged on a single indictment dated 12 January 2012 (�the original indictment�) with seven counts covering three separate incidents involving three different complainants. Counts 1�3 related to the offences allegedly committed on 20 October 2011 against the complainant in this case (�the complainant�); count 4 related to an offence of rape allegedly committed against a second complainant; and counts 5�7 related to three offences of abduction, rape and attempted rape allegedly committed against a third complainant.
On 3 February 2012, count 4 was severed from the original indictment and dealt with separately in a fresh indictment, in respect of which the appellant was in due course tried and acquitted on 1 August 2012. On 21 September 2012, the original indictment was further severed and counts 5�7 were also dealt with on a separate indictment, in respect of which the appellant pleaded guilty on 22 October 2012. On 31 May 2013, after an unsuccessful attempt to vacate his plea, the appellant was sentenced to 15 years' imprisonment on these counts.
On 21 September 2012, the remaining counts 1�3 in the original indictment were therefore included in Indictment 87B/11. On 17 February 2013, the appellant pleaded not guilty to all three counts and it is in these circumstances that the case came on for trial before Quin J on March 25 2013.
The charges against the appellant generated considerable media attention. In his written submissions, Mr Wood QC divided the matters complained of by the appellant into three separate periods: (a) pre and post-arrest (2011); (b) after the appellant's guilty plea to the original counts 5�7 (2012); and (c) three weeks before the commencement of the appellant's trial on Indictment 87B/11 (March 2013). In addition to the separate bundle of all the allegedly prejudicial material with which we were provided, Mr Wood very helpfully set out what he was careful to emphasise were examples only in his written submissions. For present purposes, we will mention some of them.
(i) The Cayman Compass (online source), 31 October 2011, reported that the police were requesting the public's help �in finding Jeffrey Barnes in relation to the rape of a woman in Red Bay on Saturday�. The report went on to state that �Barnes is also wanted for the sexual assault of a family member and repeated attempts to lure an 11 year old girl in to his car�. Further, that �Superintendent Bodden warned that Barnes has a �violent disposition� and should be considered dangerous, adding he is known to have access to firearms�. The Cayman News Service (online source) of the same date also reported Superintendent Marlon Bodden as telling the media at a press briefing that �[w]e are aware that he has access to firearms and he is a dangerous individual with a violent disposition and it is very important we get him into custody�.
(ii) IEyenews (online source), 1 November 2011, reported the following:
�Sickening sex fiend Jeffrey Barnes was recently released from Northward prison after serving time for another rape.
The 32-year-old is now wanted in connection with the abduction and sex attack of a 49-year-old woman on Saturday morning.
Yesterday detectives revealed how Barnes � who has been described as �very violent�� tried to lure an 11 year old schoolgirl into his car three times on Saturday morning.
After he failed to snatch his prey he cruised the streets of Cayman looking for another victim.
He eventually found a woman in West Bay and bundled her in to his red Honda Civic before taking her to nearby Admiral's Landing and raping her around 10.30am.
Yesterday police took the unusual step of naming and releasing a photograph of Barnes who is also wanted on an unrelated assault charge.
Detective Superintendent Marlon Bodden said yesterday: �He is a very violent and dangerous person � We need to get him off the streets�.�
(iii) The Cayman News Service (online source), 3 November 2011, reported that �[t]he senior officer said that police were now following up reports and allegations against the suspected rapist who has not been charged, but Bodden said he was confident he was the �right guy� in connection with the incidents reported at the weekend�.
(iv) IEyenews (online source), 3 November 2011, stated that:
�Jeffrey Barnes was let out of prison after serving a minimal sentence for RAPE. His victim then was a 16 year old girl and he received prison time of just over a year! He didn't waste any time to allegedly commit the same crime again. A few weeks later, an 11 year old schoolgirl was lucky to escape this allegedly sexual predator's vile assault. There is also a report he allegedly sexually assaulted a family member.
Jeffrey Barnes was already wanted for another criminal act when he raped again. This man is sick. Keep him locked away until he is cured. And the cure may be never.�
A further IEyenews (online source) report that same day added that:
�Another woman has come forward alleging sexual assault against convicted rapist Jeffrey Barnes, telling police she was attacked in the past few days, just prior to his Tuesday arrest on charges stemming from two incidents on Saturday.�
Detective Superintendent Marlon Bodden was also reported as describing the series of attempts and assaults as �the most outrageous case in recent times�.
(v) Cayman 27 (online source), 22 October 2012, reported that, according to Cayman News Service �
�� moments before the start of his trial Jeffrey Barnes changed his plea to Guilty. The Grand Court heard the 31 year old from George Town told the woman he had a gun when he forced her into his car from a bus stop on Shamrock Road in Red Bay in October last year.
He then drove to deserted area in Admiral's Landing where he carried out the rape.�
(vi) Cayman News Service, 22 October 2012, also reported that �Jeffrey Barnes has admitted abducting and raping a 49 year old woman�. Further, that �[j]ust before his trial in the Grand Court on Monday morning, Barnes, albeit reluctantly and only with the prompting of his attorney, admitted [having committed the offence]�.
(vii) Ieyenews (online source), 23 October 2012, also carried a report of the previous day's proceedings in court:
�He had previously pleaded �Not Guilty� but after some prompting from his attorney he changed his plea that included admitting anal rape!!
She was waiting for a bus to take her to work when Barnes approached her with what she believed was a gun �
Barnes then drove the woman to a deserted spot in Admiral's Landing, parked the car and forced the woman to have sex. His victim all the time thought he had a gun.
He even told her that in the lake nearby were bodies of people who had been killed! �
� only a few weeks before any of the above, Barnes was let out of...
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