Arguments about a defendant’s right to bail were aired in Summary Court on Wednesday in the case of a man charged with rape.
Crown Counsel Andre Mon Desir objected to bail and detailed his reasons after outlining the allegations. Defence Attorney Nicholas Dixey pointed out that bail is a right, not a privilege.
Magistrate Nova Hall denied bail, citing concern for the complainant and the likelihood of the defendant absconding.
Mr. Mon Desir said the offence was alleged to have occurred last month at the complainant’s residence.
He explained that the defendant was introduced to the woman through a mutual friend and they passed time at her home. Later they went to a bar.
When the defendant and complainant returned to her home, he forced his way inside. He produced a knife and forced her to perform indecent acts on him. Other indecencies occurred, followed by intercourse against her will.
Mr. Mon Desir said the defendant was considered a prime candidate for flight because he is a foreign national with no ties to Cayman except his temporary work permit.
Further, the defendant had resided in the same area as the complainant and the Crown was concerned about the possibility of his interfering with the complainant.
Mr. Dixey told the court that the defendant, who is 26, had been in custody since shortly after the incident. He understood the misery of incarceration and the importance of abiding by any bail conditions the court could impose.
The defendant does have ties to the island, in that his mother lives here and has status, Mr. Dixey advised. The defendant came to Cayman to see if he could make a better life for himself and his fiancé, the attorney said.
The allegations were strenuously denied, he pointed out. The defendant had given a full account to police and indicated that whatever took place was consensual. The Crown’s summary of facts did not indicate any injuries, he noted.
Mr. Dixey submitted that the defendant should not be kept in custody until his trial because the matter would have to go to Grand Court, where trials are already being set for June of 2006.
The attorney agreed that other defendants had travelled illegitimately, but argued that they either had access to large amounts of money or else their homeland was close enough to reach by boat. Someone with few ties in his neighbourhood would have difficulty making arrangements to leave, he suggested.
There are plans to reform the Bail Law, Mr. Dixey acknowledged (Caymanian Compass, 30 September). But for now, the law gives everyone who comes before the court an entitlement to bail that can be set aside only in particular circumstances. For example, that a defendant would fail to surrender – not may or could fail – or would interfere with justice.
‘We are in a political climate of concern about crime and bail in particular,’ he said. ‘But as custodians of justice we must faithfully uphold the law as it stands.’
The magistrate said she was grateful for the submissions made by both attorneys. In this case, she indicated, she had been particularly struck by the violent nature of the allegations made. She therefore had concerns for the protection of the complainant.
Further, she considered the defendant’s residential status.
The magistrate said it had been the courts’ unfortunate experience that, if there were sufficient incentive, persons from all social strata and nationalities found ways to leave these islands.
Testimony to this is the fine collection of passports surrendered to authorities and still in their possession, she observed.
For all the reasons outlined by the Crown, bail was denied.
The matter was scheduled for mention again on 12 October.
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