Court outlines reasons for dismissal of rape appeal

The Cayman Islands Court of Appeal released its reasons last week for its dismissal of Philip Turner Rose’s appeal against a rape conviction.

Rose had been found guilty in 2011 of four counts of rape, two counts of assault causing bodily harm and one count of abduction within an 18-month period.

The victim was a woman who said she had begun a consensual relationship with Rose, but then had tried to break it off. She said she left the island to get away from him. When he continued to harass or abuse her with text messages, she made her formal complaint to police.

Rose elected trial by judge alone. Chief Justice Anthony Smellie heard the evidence, convicted Rose and sentenced him to 14 years imprisonment.

The Court of Appeal heard the matter in November, 2015, and dismissed the appeal against convictions. The court released its reasons for its decision last week. Rose did not appeal against sentence.

There were three grounds of appeal.

One had to do with the evidence of a clinical psychologist, who told the court about the complainant’s account of an abusive relationship and her appearance of being distressed, anxious and fearful. The argument was that this was not evidence of recent complaint and so should not have been part of the Crown’s case.

The Court of Appeal said it was an important part of the defense case that the complainant “had made no allegation of rape until she had left the island, … but on the contrary, had exhibited jealousy herself and had been a willing partner to consensual sexual relations. She had only changed her attitude out of jealousy and vindictiveness later.”

The appeal court pointed out that this line of defense was rebutted by the fact that the woman had complained to the psychologist long before she left the island.

Another ground of appeal was the Crown’s late service of this and other evidence. The psychologist’s statement, for example, was given to the defense just five days before trial began even though it was dated seven month earlier.

The appeal court stated: “It is the prosecution’s duty to disclose all material evidence as soon as possible. It is unfair and impermissible to sit on evidence once obtained, disclose it piecemeal late … And then hope that the defense counsel is of sufficient experience and skill to deal with it …. A defendant will need to be assisted in unharassed consideration of the evidence against him, so that he has a fair opportunity to give what relevant instructions he can.”

Although the late disclosure was inexcusable, the court concluded, it did not follow that the trial was unfair or that the convictions were unsatisfactory. The judges hearing the appeal had analyzed the trial transcripts, which did not suggest that the defense was hampered.

The last ground of appeal the tribunal considered had to do with an allegation of defense attorney incompetence. But it is a well-settled principle that a lawyer should not put forward allegations of incompetence based only on the statements of a convicted person. Proper steps must be taken to determine whether there is any “objective and independent basis” for such a claim. Having reviewed specific details, the court dismissed this ground of appeal along with the others.

The appeal was heard by Justices John Martin, Sir Richard Field and Sir Alan Moses.

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