XY v R

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Conteh, JJ.A.)
• Judgment Date: 11 August 2011
• Court: Court of Appeal (Cayman Islands)
• Date: 11 August 2011

Court of Appeal

(Chadwick, P., Forte and Conteh, JJ.A.)

XY

and

R.

Ms. L. Organ for the appellant;

J. Masters, Senior Crown Counsel, for the Crown.

Cases cited:

(1) R. v. Benton, 2000 WL 491414, considered.

(2) R. v. Cooper, [1969] 1 Q.B. 267; [1968] 3 W.L.R. 1225; [1969] 1 All E.R. 32; (1969), 53 Cr. App. R. 82, dicta of Widgery, L.J. applied.

(3) R. v. LakeUNK(1976), 64 Cr. App. R. 172, considered.

(4) R. v. WallaceUNK(1978), 67 Cr. App. R. 291, considered.

(5) R. v. Wellington, [1991] Crim. L.R. 543, considered.

Legislation construed:

Court of Appeal Law (2006 Revision), s.9(1)(a): The relevant terms of this paragraph are set out at para. 5.

Criminal Procedure-appeals-grounds of appeal-by Court of Appeal Law (2006 Revision), s.9(1)(a), may appeal if jury”s decision ‘unsafe or unsatisfactory’-court not to interfere if ‘lurking doubt’ as to justice of decision of properly directed jury unless perverse, i.e. one which no reasonable jury could reach on evidence-in circumstances of case, not perverse to prefer young complainant”s evidence to that of experienced gynaecologist

The appellant was charged in the Grand Court with three counts of rape.

The appellant was tried before the Grand Court (McDonald-Bishop, Ag. J. and a jury) on six counts of rape. Those counts alleged rape in the years 2004–2007, before the complainant had reached her teens. At the close of the Crown”s case, a successful submission of no case to answer in relation to three of those counts was upheld and, accordingly, the trial continued only on the other three counts.

There were no witnesses to the alleged offences other than the appellant and complainant themselves. The complainant gave her evidence five years after the first offence was said to have taken place. Given the time that had elapsed and her young age, it was to be expected (and it was the case) that her evidence was, in part, inconsistent with statements she had made to the authorities when the complaint was first made; and, in parts, itself self-contradictory. Those inconsistencies and self-contradictions were drawn to the attention of the jury in the course of the judge”s summing-up. The appellant did not himself give evidence and the judge was careful to point out to the jury that he was entitled to require the prosecution to prove its case.

The appellant called one witness in his defence: Dr. E, an experienced gynaecologist who had examined the complainant after the complaints were made. Dr. E”s evidence was that the complainant”s hymen was not broken, which was inconsistent with any penetration sufficient to support a charge of rape. The complainant was also examined, five hours later, by a general practitioner to whom she had been taken by her mother. The G.P.”s evidence was that the complainant”s hymen was broken; however, she accepted-as the judge carefully explained to the jury-that a broken hymen was not, of itself, an indication of penetration in the course of a sexual act.

The appellant was convicted by the verdict of the jury on all three counts. He was sentenced to 13 years” imprisonment on the first count, and to 12 years” imprisonment on the second and third counts, each term to run concurrently. He appealed against that conviction, submitting that it was unsafe because the jury had preferred the evidence of a young complainant to the evidence of an experienced gynaecologist.

Held, dismissing the appeal:

The court would not set aside the appellant”s convictions as ‘unsafe or unsatisfactory,’ pursuant to s.9(1)(a) of the Court of Appeal Law (2006 Revision), on the ground that it had a ‘lurking doubt’ as to the justice of the jury”s decision. When a jury, which had been told that it was for them to decide whose evidence they accepted and had been given all the material needed to make that decision, reached a verdict which could not be said to have been perverse, it was not open to the court to interfere. A verdict was perverse if it was one which no reasonable jury could have reached on the evidence. The task of deciding whose evidence to accept was central to the role of the jury in a criminal trial; hence, to prefer the evidence of one witness to the evidence of another was not, of itself, perverse. In the particular circumstances, it was not necessarily unreasonable for the jury to have accepted the complainant”s evidence, despite the contrary evidence of an experienced gynaecologist (para. 20).

1 CHADWICK, P.: In March 2011, the appellant, XY, was tried before McDonald-Bishop, J. and a jury on six counts of rape. At the close of the Crown”s case a successful submission of no case to answer in relation to three of those counts was upheld and, accordingly, the trial continued only on the other three counts. Those counts alleged rape between 2004 and 2007, when the complainant was a pre-teenager.

2 The alleged acts of rape occurred in the house in which the complainant was living; the appellant was a relative. As might be expected in a case

of that nature, there were no eye-witnesses to the alleged offences other than the appellant and complainant...