Court of Appeal orders retrial
Justice Elliott Mottley explained that evidence had come to the attention of the court that had not been available at the trial.
If the evidence had been given during the man’s trial, he said, “it might reasonably have affected the decision of the jury to convict on each of the counts and we must therefore regard the convictions as being unsafe.”
Senior Crown Counsel Tricia Hutchinson then asked that the court order a retrial. She agreed that, while it was conceivable the jury might have been affected by such evidence, it was equally possible that the evidence may not have had the effect of negating their belief in the complainant.
The stepfather had been sentenced to eight years’ imprisonment for rape and a consecutive term of 15 months for indecent assault. The girl was aged 12 and 13 at the time of the alleged incidents leading to the charges.
Attorney Amelia Fosuhene, who conducted the appeal, expressed concern that her client would not be able to receive a fair trial, in part because of prejudicial media coverage.
She referred to “something unique to the Cayman Islands” – a Facebook page for a Cayman Islands sex offenders registry. She said her client’s case had been widely publicized.
Justice Mottley said that would have to be removed immediately because the man was no longer convicted.
Ms. Fosuhene said further that the person who runs the site had put up pictures, named him and attached a link to coverage on Cayman 27 television station.
“There is no guarantee that jurors [in a retrial] could or would put the prejudicial coverage out of their minds,” she submitted.
She added that the owner of the site had recently posted information about the man appealing his convictions and there was comment about it.
Justice Mottley said the Privy Council had heard a matter involving the question of publicity and fair trial. The decision was that these were issues for the trial judge to deal with.
Ms. Fosuhene then questioned whether witnesses would be available for a retrial. The judge replied that if the prosecution asks for a retrial, they should be able to produce their witnesses.
The attorney then asked for bail. Justice Mottley said that was a matter for the Grand Court, which should deal with it as soon as possible.
He had heard the appeal with Justice Sir Anthony Campbell and Justice John Martin. Their judgment explained that it is rare for the Court of Appeal to allow further evidence to be called.
It would only do so if the evidence was not available at trial, was relevant to the issue, and was credible.
Having heard the fresh evidence, the court concluded that it might have affected the decisions of the jury to convict.