Wright v R
| Jurisdiction | Cayman Islands |
| Judge | (Mottley, Campbell and Martin, JJ.A.) |
| Judgment Date | 24 October 2014 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 24 October 2014 |
(Mottley, Campbell and Martin, JJ.A.)
N. Dixey for the applicant;
Ms. T. Hutchinson, Senior Crown Counsel, for the Crown.
(1) Minott v. State, [2002] 2 LRC 470, applied.
(2) Practice Direction (Criminal Proceedings Consolidation), [2002] 1 W.L.R. 2870; [2002] 3 All E.R. 904; [2002] 2 Cr. App. R. 35, followed.
(3) R. v. Davis (Michael George) (No. 3), [2001] 1 Cr. App. R. 8; [2000] HRLR 527; [2000] UKHRR 683; [2000] Crim. L.R. 1012; [2000] EWCA Crim 109, applied.
(4) R. v. Dhillon, [2011] 2 Cr. App. R. 10; [2010] EWCA Crim 1577, applied.
(5) Randall (B.V.) v. R., 2002 CILR 254; [2002] 1 W.L.R. 2237; [2002] 2 Cr. App. R. 17; [2002] UKPC 19, applied.
Evidence Law (2007 Revision), s.18(b): The relevant terms of this sub-section are set out at para. 9.
Police Law 2010, s.149: The relevant terms of this section are set out at para. 10.
Criminal Procedure-fair trial-right to silence-court to satisfy itself that defendant aware adverse inference can be drawn from refusal to testify-court to incorporate English practice direction for English Criminal Justice and Public Order Act 1994, s.35, as relevant English statutory provision sufficiently similar to Cayman provision; no Cayman direction issued; and, if Cayman direction issued, likely to be in same terms as English direction-should ask defendant”s attorney whether has advised him of ability to draw inferences and, if not, to adjourn briefly so that may do so-failure to satisfy itself not to mean conviction unsafe if, without failure, only reasonable and proper verdict possible would have been guilty
Criminal Procedure-verdict-inconsistent verdicts-inconsistent verdicts against single defendant not to mean guilty verdict unsafe unless logically inconsistent and no legitimate explanation to account for difference-no logical inconsistency merely because charges overlap if one charge not reliant on other; sufficient evidence to support one charge but not other; or witness”s testimony only accepted in some areas
The applicant was charged in the Grand Court with possession of an imitation firearm with intent to commit rape, rape and indecent assault.
The applicant broke into the victim”s house by kicking open her door and had sex with her without her consent. The victim alleged that she did not fight back because he had had a gun and that he had placed it on the bed during the rape-although he had never pointed it at her or threatened her with it. The victim reported the attack to the police and told them that the applicant had held the gun and that she had felt it against her neck-although she did not include these claims in her testimony during the applicant”s trial. When the police went to the applicant”s house, he refused to come outside and hid under a bed. After his arrest, he claimed that the victim had invited him into her house, that the sex had been consensual and that he had not had an imitation firearm.
The applicant did not testify at his trial-relying instead on the statements that he had made to the police-and at no point in the proceedings was he asked whether he understood that, under the Police Law 2010, s.149, the court was entitled to draw inferences from his
refusal to do so. The Grand Court (Henderson, J., sitting alone) found that, in relation to the charges of rape and indecent assault, the victim was a reliable witness and that the applicant had failed to provide an innocent explanation for the broken door frame. It therefore found that he was guilty on these counts. The court also found, however, that as there was no evidence that the applicant had used the firearm to coerce the victim, the victim”s evidence as to the existence of the firearm was inconsistent and no firearm had been recovered, the charge of possession of an imitation firearm with intent to commit rape must be struck out.
The applicant submitted that he should be entitled to appeal against his convictions because he had not been informed that an adverse inference could be drawn from to his refusal to testify. For the English Criminal Justice and Public Order Act 1994, s.35-the English equivalent to the Police Law, s.149-a practice direction had been issued which required the court to ask (in the presence of the jury if relevant) whether the defendant had been advised of the consequences of his refusal to testify. As the two sections were sufficiently similar, and there was no equivalent Cayman practice direction, the Grand Court must be required to comply with this direction and, as it had failed to do so, the applicant had been deprived of a fair trial. He further submitted that as the victim had claimed that she had not fought back because of the gun, the existence of the gun must be central to the charge of rape. As there was insufficient evidence to show that the gun existed, the Grand Court should not have found that there was sufficient evidence to convict him.
The Crown conceded that the English practice direction could apply but submitted that, in the circumstances of the case, the court”s failure to comply with it did not make the conviction unsafe. There was sufficient evidence to convict the applicant without an inference of guilt and the failure therefore did not unfairly prejudice his right to a fair trial. The Crown further submitted that proof of the existence of the gun was not necessary to convict the applicant, particularly as the judge had accepted the victim”s testimony that she had not consented and that she was scared of the applicant.
Held, dismissing the appeal:
(1) The court had failed to satisfy itself that the applicant was aware that adverse inferences could be drawn from his refusal to testify, but this did not mean that the conviction was unsafe. Under the Police Law 2010, s.149(2), the court was required, at the conclusion of the prosecution”s evidence, to ensure that the defendant was aware of the possible consequences of his refusal to testify or his failure to answer a question after having been sworn. This provision was similar to the relevant English provision and it was likely that, if a practice direction were issued, it would be in the same terms as in England (i.e. that the court was required to ask a defendant”s attorney if he had advised the defendant of s.149 and, if he had not done so, to adjourn briefly to allow him to do so). The court had clearly failed to do this and there had therefore been an irregularity in
the course of the trial. There was, however, no consequence stated under s.149 for the court”s failure to do so and an irregularity would only render the conviction unsafe if the failure was so gross, prejudicial or irremediable that the trial was made unfair. Accordingly, the court would not find that the conviction was unsafe if, had the irregularity had not occurred, the only reasonable and proper verdict possible would have been guilty. The Grand Court had accepted the victim”s testimony as true (and had not done so on the basis of any adverse inference from the applicant”s refusal to testify) and there was sufficient evidence which showed that the applicant had forced his way into the house and subsequently attempted to hide from the police. As a result, there was sufficient evidence on which to base the conviction without relying on any adverse inference and the convictions were not unsafe (paras. 11–25).
(2) There was no logical inconsistency between the two verdicts which required the applicant”s convictions to be quashed. A verdict could be found to be unsafe if there were a logical inconsistency which could not be explained and there was no legitimate reason which could sensibly account for it (e.g. if there was evidence to support one charge but not the other, or if a witness”s testimony could be accepted in some areas but not in others). The charge of possession of an imitation firearm with intent to commit rape required the applicant to have had the weapon for the purpose of committing rape and there had never been any suggestion that he had pointed the gun at the victim or used it to obtain sex-merely that the victim had not fought back because she had been scared of the weapon. It was not, therefore, inconsistent to find that there could be sufficient evidence that the victim had been scared by the applicant”s gun but that there was insufficient evidence to find that the he had possessed it for the purpose of committing rape. Further, the Grand Court had explicitly stated that the fact that her testimony as to the weapon was inconsistent and uncorroborated did not affect the fact that it accepted her as a truthful and reliable witness in relation to the rape or sexual assault and those charges were supported by other evidence. There was therefore no logical inconsistency between the verdicts and, even if there were, it was sufficiently explained that the conviction could...
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Wright v R
...relating to the imitation firearm was struck out. The Court of Appeal upheld the appellants convictions (that decision is reported at 2014 (2) CILR 300), holding that, although the court had failed to satisfy itself that the appellant had been aware of his right to give evidence and the ris......