HM The Queen Respondent v Dwight Wright Appellant
| Jurisdiction | Cayman Islands |
| Judge | Campbell JA,Mottley JA |
| Judgment Date | 24 October 2014 |
| Judgment citation (vLex) | [2014] CICA J0404-1 |
| Docket Number | Criminal Appeal No CACR025/2012 C#01431/2012 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 24 October 2014 |
The Honorable Mr. Justice Mottley, Justice of Appeal
The Honorable Mr. Justice Campbell, Justice of Appeal
The Honorable Mr. Justice Martin, Justice of Appeal
The applicant was tried by Mr. Justice Henderson sitting without a jury on an indictment which contained three counts. The judge accepted a submission that he had no case to answer on count one which alleged that, on 13 June 2011, he was in possession of an imitation firearm with intent to commit an offence of rape. On the second count of having unlawful sexual intercourse with W.P. without her consent on 13 June 2011, he was convicted and sentenced to 12 years imprisonment. He was also convicted on count three of indecently assaulting W.P. on the same date, time and place and was sentenced to 5 years imprisonment to run concurrently with the sentence on count two.
The prosecution's case was that the applicant went to the home of W.P., the complainant, in Frank Sound located on the Eastern End of Grand Cayman. At the time, the complainant was watching television in her living room. The applicant kicked open the front door of her home. The applicant previously had a relationship with the complainant. After saying something to her, he held her by her hands and pulled her into her bedroom where he had sexual intercourse with her without her consent. The applicant also, without her consent, performed oral sex on her. The complainant stated that when the applicant entered the house she saw a gun in the waistband of his pants. However, the applicant never pointed the gun at her. While having sexual intercourse with her, the applicantplaced the gun on the bed. The complainant gave a description of the gun as being five to six inches in length; she nonetheless conceded that she had never seen a gun before that night. The applicant remained at the complainant's house until the morning. Before leaving, he asked the complainant not to report the matter to the police. He said he would have the door fixed. The complainant did in fact make a complaint to the police but did not allege rape at that time. During the investigation into the complaint, the police went to the home of the applicant; they called out to him to come outside but he did not. After entering the house, the police found the applicant hiding under a bed.
The applicant did not give evidence but relied on his interview with the police. In that interview he stated that the complainant had invited him to her house and had consented to him having sex with her. In short, his defence was that both the oral sex and intercourse were consensual. In addition, he denied that he had a gun.
The first ground of the application for leave to appeal is that the judge failed to satisfy himself that the applicant understood that, if he chose not to give evidence or refused to answer any questions (presumably if he gave evidence), the judge might draw an adverse inference from his silence. Notwithstanding that the judge made no inquiry, the judge nevertheless drew adverse inferences from the applicant's decision not to give evidence. It is said that, in the circumstances, the trial was unfair and the convictions on counts 2 and 3 are unsafe.
Mr. Dixey submitted that the correct procedure to be adopted was for the judge to satisfy himself that the applicant had been advised or otherwise understood the consequences of his choosing not to give evidence. He further submitted that the orderly administration ofjustice would favour a presumption that, in the absence of such inquiry, a defendant did not understand the consequences and, in such circumstances, to draw adverse inferences from the defendant's silence at the trial would be impermissible.
Counsel said that it was clear that Mr. Justice Henderson drew adverse inferences against the applicant in the absence of an explanation in respect of the broken door frame and the conduct of the applicant prior to being arrested when he was found by the police hiding under a bed at his home after being told by the police to come out of the house. The judge in his Reasons for Judgment concluded:
‘This defendant did not testify. If there was an innocent explanation for the broken door frame he could have testified and said so. If there was an innocent interpretation to be placed upon his action at the time of arrest he could have said so. The natural inference and the one I do draw, is that the defendant considers that giving evidence and subjecting himself to crossexamination would not assist his defence. When I consider the inference in conjunction with all the other evidence in the case, I find that I am sure that (the complainant) did not consent to sexual intercourse or to oral sex with the defendant at the time of these events.’
Miss. Hutchinson for the Crown stated that at the close of the Crown's case, the applicant had indicated that he would be giving evidence; however, he later decided not to give evidence. The defence did not call any witness and closed its case.
Section 18(b) of the Evidence Law (2007 Revision) provides:
‘18. Every person charged with an offence is a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person:
Provided that:
(b) the failure of a person charged with an offence to give evidence shall not be made the subject of comment by the prosecution but the court or jury may draw any reasonable inference from such failure.’
This provision was replaced by the 2011 revision but the section remains unchanged. It should be noted that no duty is placed on the court to bring the contents of section 18(b) to the attention of a defendant.
In 2010, provisions were enacted which dealt with the effect of a defendant's silence at his trial. Section 149 of the Police Law 2010 provided as follows:
149. (1) At the trial of any person for an offence subsections ( 2) and (3) apply unless —
(a) the accused's guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence,
but subsection (2) does not apply if, at the conclusion of the evidence for the prosecution, his attorney-at-law informs the court that the accused will giveevidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment with a jury, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.
(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.
(5) For the purposes of this section a person who, having been sworn, refuses to answer any questions shall be taken to do so without good cause unless—
(a) he is entitled to refuse to answer the question by virtue of any Law, whenever passed or made, or on the ground of privilege; or
(b) the court in exercise of its general discretion excuses him from answering it.
(6) This section applies —
(a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section; and
(b) in relation to proceedings in a Magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section.
Section 149(2) makes it imperative for the court, at the conclusion of the evidence of the prosecution, to satisfy itself, in a jury trial in the presence of the jury, that the accused is aware that the stage is reached at which he, if he wishes, may give evidence. Further, that if he chooses not to give evidence or having been sworn, refuses without good cause to answer any question, it is permissible for the court or jury to draw such adverse inferences as appear proper from his failure to give evidence or refusal, without good cause to answer any questions. The provisions of section 149 of the Police Law 2010 are similar to the provisions of section 35 of the Criminal Justice and Public Order Act 1994 of the United Kingdom. Section 35 provides as follows:
‘(1) At the trial of any person who has attained the age of fourteen years for an offence, subsections ( 2) and (3) below apply unless —-
(a) the accused's guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the...
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