Privy Council rejects rape appeal

Judges rule defendant understood decision not to give evidence could give negative inference

A man sentenced to 12 years for rape and indecent assault has had his appeal against conviction dismissed by the Privy Council.

The board of five judges indicated that although a formal procedure was not followed, they had no doubt Dwight Wright understood that a negative inference could be drawn from his decision not to give evidence during his trial.

Wright, then 38, was accused of raping and indecently assaulting a former girlfriend after kicking down the door of her house. She phoned emergency services after he left.

When officers arrived to take her report, they saw the broken door jamb and a footprint on the door. When officers went to Wright’s residence, they found him hiding under a bed.

Judge alone trial

Wright pleaded not guilty to the charges and chose to be tried by judge alone. Justice Alexander Henderson heard the matter in late 2012.

The appeal was lodged in 2014 and heard in December 2015. The judgment was released on June 30.

Cayman’s Police Law of 2010 – section 149 (2) – says that after the prosecution has completed its case, the court must satisfy itself that the defendant is aware that the stage has been reached at which evidence can be given for the defense and he can, if he wishes, give evidence himself.

Further, the court must satisfy itself that the defendant is aware that if he chooses not to give evidence, the judge or jury can draw such inferences as appear proper from his failure to do so.

Wright’s appeal to Privy Council was based on the fact that Justice Henderson did not ask him in open court if he had been advised of his right to give evidence and if he was aware of the risk of adverse inference if he chose not to give evidence.

At the end of the prosecution’s case, defense attorney John Furniss told Justice Henderson, “My client would like to give evidence,” since he was asserting that what had happened between him and the woman was consensual.

Given the time of day, the judge offered the option of beginning the defense the next morning and this was accepted. The next morning, however, Mr. Furniss advised that the situation had changed.

“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 defense case would rest,” Mr. Furniss said.

After a discussion of what facts were agreed on by both sides, Mr. Furniss again stated that Wright did not wish to give evidence.

Procedure not followed

Justice Henderson then invited closing arguments from both sides. As the Privy Council noted, “The procedure set out in section 149 (2) was thus never followed.”

The question then was – Should Wright’s conviction be quashed because the judge did not ask him in open court whether he had been advised of his right to give evidence and of the risk of adverse inference if he did not?

“Whether or not to give evidence is probably the most significant decision which a defendant has to make in the course of his criminal trial,” the Privy Council judges said in their ruling.

The purpose of the law is to ensure that the defendant has had the necessary advice and the best way to establish that is to ask in open court, the council stated. However, if it is clear that advice has been given, then the irregularity of the judge not asking is not material to the safety of the conviction.

In this case, Wright knew very well that he had the right to give evidence, since the judge was told he would like to, the judges ruled.

Mr. Furniss’s report to Justice Henderson the next morning showed that there had been a second discussion between Wright and his attorney, the Privy Council’s judgment stated.

‘Improbable’ counsel did not explain

“It is in the highest degree improbable that either of these discussions – and certainly both – could have taken place without counsel explaining what would happen if [Wright] went into the witness box (and specifically that he would be taxed with explaining the broken door) and what would happen if he did not (when he would run the risk of adverse inference),” the judgment said.

In finding Wright guilty, Justice Henderson did draw an adverse inference from the defendant’s failure to give evidence. He said that if there had been an innocent explanation for the broken door or for hiding when the police came, Wright could have been expected to give it. The natural inference from Wright’s decision not to explain was his conclusion that subjecting himself to questions from the prosecutor would not assist his defense.

Even after the matter went to the Cayman Islands Court of Appeal and after Wright instructed another attorney, it was never asserted that Wright was under any misapprehension as to what might happen if he chose not to give evidence, the Privy Council pointed out.

Not a formality

The judges warned, however, that it is not a mere formality to ask if a defendant has been advised of his right to give evidence and that a judger or jury may draw inferences if he fails to give evidence. It is the responsibility of both counsel, as well as of the judge, to ensure that this procedure is carried out as the law requires, they said. Failure to carry it out will be a material irregularity, in the absence of the legitimate conclusion that it made no difference.

Wright’s appeal was presented by Michael Wood, QC, instructed by Nicholas Dixey. Responding on behalf of Cayman’s Legal Department was David Perry, QC, instructed by Alistair Richardson.

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  1. Can the Compass find out how much this cost?. Appeals to the Cayman Islands Court of Appeal and the to the Privy Counsel must have incurred substantial costs. As a layman, I have two concerns, one that if proper procedure had been followed none of this would have been necessary, and secondly the end result should have been predictable any way and the first appeal, presumably turned down should have been the end of it.