Justice Charles Quin upheld a “No Case Submission” against a man last Friday (1) in Grand Cayman’s Grand Court.

The man, who cannot be named, was charged on two counts”

1. unlawful sexual intercourse with a female, who cannot be named, without her consent, on 7^th November 2012
2. indecent assault against same female in count 1 on 7^th November 2012.

The Judge Alone Trial began on July 31^st 2014 and after the Crown’s case closed counsel on behalf of the Defendant made a no case to answer application on both counts of the Indictment that there was insufficient evidence of either offence having been committed by the accused, and the Crown’s evidence had been so thoroughly discredited that no court could rely upon it in finding the Defendant guilty.

The Crown’s case was that the victim took a drug (the Mollie/Ecstasy pill) given to her by the defendant with her consent that negatively affected her mind and her memory.

The woman said she fell asleep and after waking up she had no panties on and discomfort in her vagina. When she went to the refrigerator, she said she found the Defendant there and he said “how much fun it was last night, the pill was amazing.” Although the woman could not recall the exact words the Defendant used, she said that he left her with the clear impression that he was saying that they had sex.

She also said she found a hickey she had on her neck when she woke up with no evidence the hickey was there before that, and the Defendant had said that she and her best friend and himself could make money out of nude photos of the girls. She said he had followed this up by taking photos of them without their permission.

She also complained that the Defendant had sexually assaulted her with a grey plastic tube.

Justice Quin said the evidence before the Court is similar for both counts but noted: “the most significant point for the Complainant in relation to this charge is her evidence that, when she went to the kitchen the morning after the alleged incident the Defendant told her they had sex. When asked what exactly the Defendant said to her the Complainant said, “I don’t recall exactly but I do recall him making it clear we had sex that night … I just remember him saying how fun it was last night and the pill was amazing.”

“The Complainant said she could not recall what the Defendant actually said about sex.

“There is also the Complainant’s evidence that she saw a hickey- a love bite- on her neck that morning, which was not there before. The significant evidence before the Court in relation to this point is that:

“Based on the evidence from the Complainant’s mother, the Complainant’s younger sister told her mother that she slept in the Complainant’s bed with the Complainant for some part of the night and the Complainant had wet the bed;

“The Complainant’s communication with her best girlfriend about the incident stated “we f—–” but never included the word rape.

“The Complainant, by her own evidence, has been caught by her mother in the past with a male in her bedroom;

“The Complainant, though young, has had sex on previous occasions

“The Complainant knows what it is to “leak”- as in pass out unconsciously, due to too much alcohol and or drugs in her system.

“One stark example of conflicting evidence is that on the night in question the Complainant said she took the Ecstasy tablet at approximately 8:30 p.m. Her evidence is that, within 1/2 hour to an hour, the tablet began to kick in – leading to a total black out on her part somewhere around 9:30 pm. However, despite the fact that the Complainant said that the Defendant told her to put her phone away there isclear evidence that her phone was in active use from 9:20p.m.until 12:14 a.m. the following day. There were 13 separate communications, including one at 11:08 p.m. saying “That was my friend.” This is more consistent with the Defendant’ssuggestion that she was out with at least one friend, and not consistent with her passing out earlier that evening.

“On the evidence presented throughout the course of this trial there is no direct evidence that the Defendant ever had sexual intercourse with the Complainant…..

“The fact that the Complainant complains that her vagina felt sore when she woke up at 10 a.m. on the day following the alleged incident does not necessarily lead to the conclusion that the Defendant raped the Complainant.

“Furthermore, the Crown has not proved that the Complainant did not consent to the act, if indeed it ever took place.

“Accordingly, on my review of the evidence presented to the Court, I come to the conclusion that the evidence, taken at its highest, in relation to Count I, is such that a jury, properly directed, could not properly convict upon it and therefore, it is my duty upon a submission being made to stop the case in relation to the first Count.”

The Judge then made his ruling on the second count and said much of the same he had previously stated regarding the first count.

He said the woman had “decided in her own mind” to take the drug and she and the Defendant had agreed they would take the tablet (the Mollie) after “putting her sister to bed”. She had delayed taking the tablet, which was weeks before, “Because I did want to try it with someone I felt safe with.”

After taking the tablet with alcohol she recalled the Defendant was hanging out in the living room “relaxed” and playing “Madden football” whilst she was listening to music. About half an hour later she said she had begun to, “.. .feel dizzy and lightweight. I almost could not stand I was feeling weak and very dizzy. I was dancing in circles. I don’t remember the name of the music.” She said after that she felt the Defendant come up behind her: “… and wrap his arms around my shoulders … it was like a hug … like he was holding me up. But then ….it felt like both of us were dancing. I felt like I was going in and out of consciousness … blacking out … I felt my knees were weak like I couldn’t stand Then I remember us dancing and then blacking out.”

Justice Quin said, “The Defendant’s evidence is that she does not recall anything else after that point until she woke up the next morning at 10 a.m., when she said she woke up dressed in the same tank top she wore the night before, wearing no panties/knickers. She said that when she woke she was still feeling dizzy and: “… my head was pounding. As I got out of bed I stumbled and my vagina felt sore.”

“She said that when she went to bathroom she noticed she had a hickey on her neck.

“In relation to the Complainant’s sore vagina and Exhibit #2 [the grey plastic tube)

That it is alleged was used by the Defendant on the Complainant   the evidence   is that it was the Complainant’s mother who told the Complainant that the item could be very significant and that was why the item was eventually taken to the police.

“There is no direct material evidence of the Defendant sexually assaulting the Complainant with Exhibit #2- save and except for the Complainant complaining of a discomfort in her vagina.”

The Judge then gave some case law and then stated,” There is insufficient   evidence to prove beyond all reasonable doubt that the Defendant sexually assaulted the Complainant as alleged in Count 2.”

After some more case law relating to judge alone trials he entered a verdict of Not Guilty on both counts and acquitted the Defendant.

In conclusion he said, “This has been a very sad case and, I have no doubt that Crown’s witnesses and their families were genuinely upset, as must have been the Defendant and his family. What is particularly sad is that the Complainant has been using ganja from the age of 15 years old, and that she has become a frequent user of this illegal drug. I take this opportunity to warn the Complainant that if she continues to take ganja and experiment with drugs such as Ecstasy, more trouble is inevitable for her.”

The Justice thanked both counsels for “the professional manner in which they conducted this case” and said there should be no criticism of the Crown or the police.

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