AC v Her Majesty the Queen - Judgment

¶ Criminal Appeal 21 of 2021 AC v The Queen – Judgment

IN THE CAYMAN ISLANDS COURT OF APPEAL
CRIMINAL APPEAL 21 OF 2021
IND#0003/2021
SC#02766/2020
BETWEEN
AC
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
BEFORE:
The Rt. Hon Sir John Goldring, President
The Hon Sir Michael Birt, Justice of Appeal
The Rt. Hon Sir Jack Beatson, Justice of Appeal
Appearances:
The Appellant in person
Mr Neil Kumar Office of the DPP, for the Respondent
Heard:
19 May 2022

¶ JUDGMENT
Transcript of oral judgment dated 19 May 2022 and Approved for Release 29 June 2022

¶ GOLDRING, Pres.
1.
On the 7th of July last year, after a judge alone trial, the Applicant, AC, was convicted by Justice
Cheryll Richards QC, of two counts of abuse of position of trust with respect to his 12-year old
niece, ("TG") contrary to section 228L(1)(b) of the Penal Code (2019 Revision). He was sentenced
to the minimum term of 7 years' imprisonment. A sexual harm prevention order was fixed for a
period of five years following his date of release from prison. He now seeks leave to appeal against
that conviction.

¶ Criminal Appeal 21 of 2021 AC v The Queen – Judgment

2.
He has represented himself before us. The facts have been helpfully set out by Mr Kumar on behalf
of the Respondent.
3.
TG was 12 at the time of the alleged offending. Her mother ("TC") is the Applicant's sister. There
are other children of the family. The alleged offences took place at the Applicant's home, a small
one-bedroom apartment in which he lived with his girlfriend and his son.
4.
The offending alleged in respect of count one occurred on an unknown date. TG was visiting. Her
sisters were outside playing. The Applicant, it was alleged, pulled her onto his bed and tried to
remove her clothing. She managed to get away from him and ran out of the room. She made no
report about this incident at the time.
5.
Count two was said to have occurred on the 11th of November 2020. The Applicant had collected
three children: TG’s family and his own. The Applicant’s son was there at the time. TG went into
the Applicant's room to ask him about her socks. It was alleged that he closed the door, pulled TG
onto his bed, pulled down her clothing and touched her vagina.
6.
TC arrived to collect the children. One of the younger children knocked on the bedroom door.
When there was no answer, TC opened it. She said that she saw TG behind the bedroom door with
her shorts and underwear down to her knees. She was using both hands to pull up her clothing.
The Applicant was lying on his bed covered with a blanket, with one hand outstretched towards
TG. TC became angry and demanded to know what was going on. There was an altercation with
the Applicant. She called other relatives by telephone. TG made a complaint about what had
happened to her mother either at the bedroom door or subsequently in the car. There was conflicting
evidence about this.
7.
The police arrived. The Applicant, when interviewed, denied trying to remove the clothing on the
11th of November 2020. He denied touching TG’s vagina. He accepted that when TC had come
into the bedroom, TG was not fully clothed. His explanation was that he had grabbed at TG, who
was running away from his bed having taken his phone, that as her shorts were a little loose they
went down, as did TG’s underwear, to just below her buttocks.
8.
In his written grounds of appeal, the Applicant made two submissions. First, he argued that the
judge was wrong to permit the Crown to lead evidence from TC of recent complaint. Although he
has not made that point before us, it is right that we shortly deal with it. The argument can be
encapsulated in the following way.

¶ Criminal Appeal 21 of 2021 AC v The Queen – Judgment

9.
TG complained about the Applicant's conduct to TC. She said she did so when in the car on leaving
the house. TC said she did so when still in the house. The defence submitted that given that
inconsistency, it would be unfair to admit the evidence of the complaint. The judge disagreed. In
admitting the evidence, she said it could be challenged by the defence and, by implication, assessed
by her in due course. In the event and in specific terms, the judge said she was giving no weight
to the evidence of recent complaint.
10.
In our view, the judge was plainly entitled to admit that evidence. It would have been surprising
had she not done so. Moreover, having done so, it not having relied upon it, its admission cannot
give rise to any arguable ground of appeal.
11.
The second ground of appeal was that the conviction was unsafe or unsatisfactory. The Applicant
has expanded that ground before us. He has highlighted that there were inconsistencies TG’s and
TC’s evidence. He has submitted that the judge was wrong to dismiss both what he and his son had
said.
12.
We can do no better than repeat what Mr Kumar said in paragraph 19 of his submissions.

¶ "…the trial judge clearly, comprehensively, and impeccably set out the reasons
… [for convicting on] both counts… The trial judge had properly directed
herself in relation to the applicable principles for judge alone trials, the
presumption of innocence and the burden of proof. Having done so, [she] …
carefully distilled each of the elements of the offence that were required to be
proven by the prosecution. The primary issue in the case was properly
identified as being the credibility and reliability of the child complainant. The
trial judge then fairly summarized the evidence in the case. The respective
arguments advanced by the prosecution and defence were also properly
considered."
13.
In essence, the Applicant's submission is that he disagrees with the judge's findings of fact.
However, they were findings which, in our judgment, the judge was plainly entitled to come to.
There is no substance in the second ground of appeal.
14.
In the circumstances we therefore refuse leave to appeal.