Wright v The Queen (Cayman Islands)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 30 June 2016 |
| Neutral Citation | [2016] UKPC 18 |
| Date | 30 June 2016 |
| Docket Number | Appeal No 0112 of 2014 |
| Court | Privy Council |
[2016] UKPC 18
Privy Council
From the Court of Appeal of the Cayman Islands
Lord Neuberger
Lord Clarke
Lord Reed
Lord Hughes
Lord Toulson
Appeal No 0112 of 2014
Appellant
Michael Wood QC Nicholas Dixey (Instructed by Nelson & Co)
Respondent
David Perry QC Alistair Richardson (Instructed by The Government Legal Department)
Heard on 7 December 2015
The appellant, Dwight Wright, was convicted of offences of rape and indecent assault committed on the same occasion. He had elected trial by judge alone, without a jury. The judge relied, in part, on an adverse inference drawn against him in consequence of his having declined to give evidence at his trial. His case is that this was impermissible because no question had been addressed in open court pursuant to section 149(2) of the Police Law 2010 in order to satisfy the judge that he had been advised of his right to give evidence and of the risk of adverse inference if he elected not to do so.
The Crown case against the appellant was that he had pestered a former girlfriend for some four months or so after their relationship ended and that on the day of the alleged offences he had kicked down her door and remained against her will for most of the night, obliging her to submit to sexual intercourse and indecent assault by way of oral sex. She had telephoned the emergency services early the next morning after he had left. The police had arrived, had seen the broken door and in due course received her complaint of rape. The appellant was arrested five days later at his home, having hidden under the bed when the police arrived. When taxed by the police with the allegation, he maintained that the complainant had invited him to her home because she wanted to have sex with him, and that all the intimacy which had taken place between them had been consensual.
On arrival in the witness box at the trial the complainant announced that she had given a further statement to the police, saying that she did not wish "to move forward with the charges". She told the court that she did not wish to give evidence, and did not wish to re-live the night in question. She denied that she had been threatened. She did not, however, at any point assert that her original statement of complaint had been false. The judge explained to her that she was bound by her oath to make truthful answer to questions asked, and, little by little, specific questions about events drew from her an account of the evening which plainly constituted complaint of the offences charged. She indignantly refuted the suggestions put in cross examination that she had invited the appellant to her home. There had been a series of telephone contacts between them, whether by voice or text, which she explained as arising from the persistence of his calling of her and the difficulty which there had been in protecting her from his attentions, even when she was advised to stay somewhere other than at her home.
In addition to the two counts for sexual offences, there was a count for possession of a firearm. In due course the judge identified inconsistencies in her evidence about the presence of any gun. None had been recovered. He held that, in the absence of any external support, that charge ought to be dismissed at the half way stage of the trial. He rejected the submission that the sexual offences should similarly be dismissed, and there has been, and could be, no complaint about that decision.
Section 149 of the Police Law 2010 exactly reproduces the earlier provision of English law in section 35 of the Criminal Justice and Public Order Act 1994, as very marginally amended in 2003 to cater for the occasional trial by judge alone. Section 149 provides, so far as material:
"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 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 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 his failure 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."
This provision, when introduced in 1994 into English law, had brought about a substantial change to the common law. Previously, the decision of a defendant not to give evidence in his own trial from the witness box had not been capable of giving rise directly to an inference of guilt. The Crown was disabled altogether from commenting adversely upon his decision. The jury had to be told that he was entitled not to give evidence and that guilt could not be assumed from his decision not to do so. The judge was entitled to comment, in an appropriate case, that the defendant's case involved the assertion of positive facts which would be within his own knowledge, but that he had nevertheless chosen not to support them by his own evidence, but although that kind of comment inevitably, and justifiably, weakened the force of the defence, it was not the same as explicitly using the silence of the accused as additional support for the Crown case: R v Bathurst [1968] 2 QB 99 and R v Martinez-Tobon [1994] 1 WLR 388. Section 35 of the 1994 Act reversed this history. It undoubtedly made a real difference to the decisions which fell to be made in the course of the conduct of a criminal defence.
It should be noted, however, that the pre-existing provisions of the law of evidence in the Cayman Islands were not identical to those in England and Wales. Ever since 1978, the Cayman Evidence Law has contained a provision, subsequently re-enacted on various occasions and now to be found in para (b) of the proviso to section 18:
"(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;"
Thus, although the new provisions introduced in 2010 by section 149 of the Police Law were attended by the same procedural rule as was attached to the 1994 English provisions, that is to say the section 149(2) requirement for the judge to satisfy himself that the defendant has been advised of his right to give evidence and of the possible risk of adverse inference if he chooses not to do so, section 18(b) of the Evidence Law had never contained any such procedural requirement.
At the conclusion of the Crown evidence, the judge was invited by defence counsel to rule that there was no case to answer. As mentioned above, he ruled against this submission except in relation to the count for unlawful possession of a firearm. After he had delivered his rulings, counsel for the defendant told the judge:
"If we're going straight on, My Lord, depending on the court reporter, my client would like to give evidence, so you would be hearing from him."
The judge thereupon enquired whether there were to be any other witnesses. On being informed that there were none apart from the defendant, he offered counsel the opportunity of beginning next morning, which invitation was accepted.
Next morning, however, defence counsel told the judge that the position had changed:
"COUNSEL: My Lord … the Crown having closed their case. I have spoken with my client, and he thought about matters overnight, and, in fact, he has given me instructions this morning, sir, that he does not wish to go into the witness box. The defence case would rest.
THE COURT: Okay. Thank you.
COUNSEL: I would just seek to then address you, My Lord, after my friend.
THE COURT: Yes. I'll just make a note."
The judge went on to ensure that he had the correct version of agreed facts. Next, he addressed counsel for the defence again.
"THE COURT: Yes, Mr Furniss.
COUNSEL: My Lord. As I indicated, My Lord, the defendant does not wish to give evidence and that will be, as a result, the defence case.
THE COURT: Yes, I've made a note of that, thank you. So we go to argument then?"
Speeches for each side ensued. The procedure set out in section 149(2) was thus never followed.
After Crown counsel's closing speech, the judge raised the question of adverse inference from failure to give evidence, to which possibility she had not, it seems, either referred or given thought. The upshot of a rather inconsequential exchange was that the Crown abjured any submission that the judge should refrain from drawing any such inference. It is plain,...
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