Carter J
```html IN THE GRAND COURT OF THE CAYMAN ISLANDS Criminal Division INDICTMENT No. 57/21 & 58/21 THE QUEEN -v- (1) ANTONIO MARSHALL (2) ERICKA LYNCH Appearances: Mrs. Medi Tomos for the Crown Mr. Richard Barton for Defendant #1 Mr. Keith Myers for Defendant #2 Before: Hon. Mrs. Justice Marlene Carter (Actg.) Date of Hearings: 16 March and 3 May 2022 Ruling Delivered: 4 May 2022 HEADNOTE Criminal Law - Trial - Assault by Penetration, Indecent Assault - Cross-examination of Complainant not complete - Exercise of Court's discretion for trial to proceed RULING PREAMBLE 1. Section 31 of the Criminal Procedure Code (2014 Revision) deals with the "Anonymity of complainants in rape etc. cases and states: ‘r a person is ve [etc.] offen l members of ice, no matter 31. (1) After accused of a likely to lead the public rap 45 pubgeorvritten puulan as the 1st ed shall t 46 m the offendbl as authenti 47 2. I will therefore refer to the complainant as "the Complainant" or "Ms. X" to protect her identity. ```
```html 1 3. The defendants are charged on an indictment with two counts alleging, Assault by Penetration 2 and Indecent Assault. 3 4 5 Circumstances giving rise to the Application. 6 7 4. The Complainant was the first witness called by the Crown at trial. The Complainant completed 8 her evidence-in-chief and was cross-examined by Counsel for Defendant #1. On 14 March 9 2022， Counsel for Defendant #2 commenced cross-examination of the Complainant. On the 15 10 March 2022 at 10：00 am the trial continued with the cross-examination of the Complainant. 11 Counsel for Defendant #2 had previously indicated to the court that he estimated that his cross- 12 examination would be completed within two hours that morning. 13 14 5. The court took the morning break at 11：05 am. During the break the court was informed of an 15 issue relating to a juror related to COVID-19. The juror was required to take a PCR test and as 16 a result the jury was released to the next morning when it was anticipated that the result of the 17 PCR test would be before the court. 18 19 6. At this point the Complainant was informed by the Court that she was to return on 16 March 20 for cross-examination to be completed. However， Ms. X did not return to court on 16 March. 21 22 7. The Crown's application is for the trial to proceed without the cross-examination of the 23 Complainant being completed. The basis of the application is the medical report of a Doctor 24 who examined the Complainant after court was adjourned on 15 March. 25 26 8. The doctor's report confirms that the Complainant was seen by him on the afternoon of 15 27 March 2022. It is not necessary here to relate the full contents of the report except to state the 28 doctor's conclusion upon examination of the Complainant： 29 30 “She is currently not capable of providing any further testimony. She has 31 apparently previously provided statements， and has been questioned 32 extensively in regards to this case. It is possible that if she is given the 33 opportunity to recover in a stress-free environment that she may be able to 34 resume responiong， howd. 35 36 It is my assess. [M 37 ment that [M 38 has had adequate opportunity to recover. This possibly will also entail 39 further therapeutic intervention.” 40 ```
```html 1 9. Crown Counsel submits that the Complainant is no longer fit to continue with her evidence. 2 Counsel submits that the trial can proceed and asks the court to exercise its discretion to enable 3 the prosecution to proceed with its case against the defendants. Counsel submitted: 4 5 “7.Where a witness becomes so distressed that it is not possible to complete 6 cross-examination that does not mean that the trial must be stopped. The 7 question will be whether the examination of the witness had been sufficient 8 to allow the jury properly to assess the issues in dispute. Appropriate 9 explanations to the jury will also be necessary.” 10 11 10. Counsel for the Crown argued that the cross-examination on behalf of Defendant #1 had 12 concluded and that of Defendant #2, though not concluded, had been extensive and had covered 13 the incident itself. Counsel submitted that there was sufficient cross-examination to enable the 14 jury to access the main issue of consent, as it had been repeatedly put to the Complainant that 15 she consented, which she denied, that the defendants’ case had been put to the Complainant 16 from beginning to end, and that with appropriate warnings and directions from the court the 17 trial could continue in fairness to all parties. 18 19 11. Counsel for the Defendant #1 in response related his concerns about areas of the Complainant’s 20 testimony that were now before the jury and which the defence will now not have the 21 opportunity to challenge. He referred to the areas outlined in written submissions for Defendant 22 #2 which he adopted. Counsel submitted that the court should be mindful of the effect on the 23 fairness of the trial with regard to Defendant #1 of these matters not being “challenged”. 24 25 12. Counsel for Defendant #2 submitted that when faced with the instant issue there were four 26 avenues for redress. The first lay with the Crown in the exercise of its prosecutorial discretion 27 whether to proceed, the second option lay with the court to discharge the jury and order a retrial 28 of the matter. 29 30 13. The third option was for the court to order a stay of the proceedings as an abuse of process. 31 32 14. th for the cou the prosecuc to continue 25 ha 33 nor. I have ccauthorities th 34 15. considered the s submitte 35 16. The Court was referred to the case of Stretton and McCallion (1988) 86 Cr App R 7 CA where 36 early in its judgment the Court of Appeal remarked: 37 38 ```
```html 1 2 3 4 17. 5 6 7 8 9 18. 10 11 12 13 14 15 16 17 18 19. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 1 2 3 4 17. 5 6 7 8 9 18. 10 11 12 13 14 15 16 17 18 19. 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 "The main point which arises in this case in the experience of this Court, and according to the researches of counsel, is unprecedented." The Court of Appeal went on to hold that where a witness became incapable though illness of giving further evidence having given evidence in-chief and having been cross-examined for some hours, that a judge has a discretion to allow the trial to continue on the basis of the evidence given. In Stretton, an epileptic and mentally handicapped woman had been unable to continue with her evidence after a substantial period of cross-examination. In that trial, HH Judge Gower QC allowed the trial to continue but invited the jury to acquit if they were not sure that the cross-examination had sufficiently probed and tested the complainant so as to enable the jury to judge fairly her credibility. The Judge gave the following direction: "If you feel that [defence counsel] was deprived of the opportunity, and that means that his clients were, of properly testing and probing her evidence, why then my advice to you would be that you should acquit both these defendants because unless you feel sure that you as the jury are in a position to make a proper assessment as to her credibility, this case does not get off the ground and I am sure you realise that." The Court was also referred to PM v The Queen [2008] EWCA Crim 2787, in which the Court considered the circumstances before the court in R v Lawless and Basford [1994] 98 Cr. App. R. 342 and in Stretton and McCallion and concluded: "[15] The essential principle is that a defendant must be given an adequate and proper opportunity to challenge and contest the evidence on which the allegation and conviction are based. In Lawless and Basford the defence were deprived of that opportunity because the only means by which they could challenge the accomplice's evidence were cross-examination and their own evidence of denial. By way of contrast, in Stratton and McCallion, the curtailed when the complainant's evidence remained in the correct challenge, cross-examination considered the fact that amendments given and the trial was adjourned, despite the direction to the jury." 220504 The Queen v Antonio Marshall & Ericka Lynch - Ruling ```
```html 1 20. The Court Appeal in PM v The Queen concluded that the trial judge's ruling to continue where 2 a complainant could not proceed after a very short passage of cross-examination did not render 3 the trial unfair or the verdicts unsafe. 4 5 21. The court noted that, "as a bare minimum the jury should have been warned to be cautious 6 about acting on the basis of her evidence when they have been deprived of the opportunity of 7 seeing the consequences, both to the witness herself, and to her evidence, of the test of rigorous 8 cross-examination." 9 10 22. While noting the direction of the trial judge to the jury in Stretton the Court remarked: 11 12 “We do not suggest that the precise terms of that direction is of universal 13 application. But the virtue of a direction with a similar thrust is that it warns 14 the jury that it should not act upon evidence which the defence has been unable 15 properly to challenge. But we add this word of caution. In many cases it ought 16 to be clear to the judge whether the defence had been deprived of a fair 17 opportunity to challenge a witness's evidence. If the judge comes to the 18 conclusion that the witness has been deprived of that opportunity, then the jury 19 should either be directed to ignore that evidence or if it is crucial to the case, 20 discharged. Save in cases similar to that of Stretton and McCallion where the 21 cross-examination was almost complete, the likely conclusion will be that 22 which was reached in Lawless and Basford namely, that the judge should have 23 discharged the jury." 24 25 23. I bear these observations in mind. 26 27 24. That the court has a discretion in the circumstance where a witness' cross- examination has not 28 been completed, to allow a trial to continue is not in doubt. The particular circumstances of 29 each case must be considered. The length and extent of any cross-examination that did take 30 place is a factor to be considered and balanced against the defendant's inability to challenge the 31 Complainant on aspects of the prosecution's evidence which the defence submit are relevant 32 and essential. The Cc the instant cearious days 33 Another aken accountess 34 use was cro 35 34. 25 factor to be t 36 36 court could adequately direct the jury as to how the jury was to approach and consider any 37 matter upon which the Complainant was not questioned in cross-examination, but which the 38 defence may raise for their consideration. 220504 The Queen v Antonio Marshall & Ericka Lynch - Ruling ```
```html 1 26. The court must be sure that it can ensure the defendant's right to a fair trial in all the 2 27. I am satisfied that the defendants have had a fair opportunity to challenge this Complainant's 3 4 evidence. There has been up to the point that the cross-examination stopped on the 15 March 5 6 sufficient examination of this witness to enable the jury to properly assess the main issues in 7 7 dispute between the prosecution and the defence. While the cross examination by counsel for 8 8 Defendant #2 was curtailed, counsel is able to provide the court with specific areas that he 9 9 would have explored with the Complainant had he been able to complete his cross-examination. 10 10 This will assist the court to give directions to the jury at the appropriate time to seek to further 11 11 ensure the fairness of the trial. 12 13 28. Counsel for the Defence has stated that there could be room for exploration between Crown 14 14 and Defence of appropriate admissions on potential inconsistencies in the areas identified by 15 15 the Counsel for Defendant #2 at paragraph 43 of his written submissions. The court invites 16 16 counsel to meet and consider these. 17 18 29. Upon the jury's return I will advise them as follows: 19 20 “When the matter was adjourned on the 15th of March last Tuesday Ms [X] was 21 21 being cross-examined. That cross-examination will not continue today and 22 22 Ms. [X] will not return to be cross-examined in this case. I direct you that 23 23 you are not to speculate about why the cross-examination of Ms. [X] will not 24 24 continue. You are not to use the fact that she will not continue her cross- 25 25 examination in any manner that is adverse to the defendants in this case. 26 26 Remember you are to determine this matter only on the evidence that is 27 27 presented to you in court. You will take my direction on this point. You will 28 28 receive further directions in due course.” 29 30 Renewed Application 31 32 33 34 35 36 37 38 220504 The Queen v Antonio Marshall & Ericka Lynch - Ruling ```
```html 1 31. As I said then 2 32. “Counsel is able to provide the court with specific areas that he would have 3 explored with the Complainant had he been able to complete his cross- 4 examination. This will assist the court to give directions to the jury at the 5 appropriate time to seek to further ensure the fairness of the trial.” 6 7 33. I further invited counsel to explore with the Crown whether appropriate admissions on potential 8 inconsistences in the areas identified by the defence at paragraph 43 of written submissions 9 could be agreed. 10 11 34. On the facts of the instant case this court has in mind that a direction may need to be given to 12 the jury surrounding the fact that if they do not believe the Complainant then their verdict 13 should be not guilty since it is only the Complainant’s evidence which goes to the central issue 14 in the trial of consent. 15 16 35. Counsel for Defendant #2 has now, in essence, renewed his earlier application that the court 23 should not proceed further and to discharge the jury and invites this court to reconsider its ruling 24 on that earlier application. 25 26 36. Counsel rested his further submission on Lawless, a case which this court did consider in 27 reaching its earlier decision to continue with the trial. Counsel submits as was submitted in 28 Lawless that “no direction to the jury was capable of curing the prejudice to these defendants 29 in not being able through their counsel to complete the cross examination of the complainant.” 30 31 32 37. In Lawless, the court was faced with accomplice evidence which had been given in evidence- 33 in-chief and but which the appellants were unable to challenge due to the inability of the 34 accompbss-examined The witnes 35 ice to be cr due to illnc was not cro 36 38. In that case the court carefully considered Stretton and McCallioll and Wyatt [1990] 39 Crim.L.R.343. The court noted that in Stretton: 40 ```
```html 1 “Counsel [who represented both defendants] had virtually finished cross- 2 examining [the complainant] on all the matters with which one of them was 3 concerned and save in a most general way had not started to cross-examine 4 her upon the specific matters involving the other defendant. 5 6 There was other evidence. provided in large part by the defendants themselves. 7 confirming much of the complainant's account of the incident in question save 8 on the issue of consent. 9 10 The problem had thus arisen at a later stage of the witness's evidence in that 11 case than In this.” 12 39. The judge allowed the trial to continue and to deal with the issue by means of a direction which 14 invited the jury to acquit both defendants if they were not sure that the cross-examination of 15 her by the defendants' counsel had sufficiently probed and tested the complainant's evidence so 16 as to enable them to judge fairly her credibility. 17 40. In this case, the cross-examination of the Complainant was over a number of hours, counsel for 19 Defendant #1 had completed his cross examination. Counsel for Defendant #1 had indicated 20 that in some respects the cross examination by counsel for Defendant #2 would complement 21 his cross examination and that there were several areas that he did not explore directly with the 22 Complainant as he was aware that counsel for Defendant #2 would do so in depth. Counsel for 23 Defendant #2 had indicated to this court that he would require 2 hours to complete his cross 24 examination. The court is mindful that this indication was but an estimate given to a query 25 raised by the court to assist the court, and the court does not consider that this time indication 26 was binding on counsel for Defendant #2. The cross-examination stopped after 1 hour. 27 41. It does appear to this court that cross-examination in this case extended somewhat beyond that 29 in Stretton. 30 42. Further, as in Stretton, the issue in the instant case is consent. The defendants have not disputed 32 that there was sexual activity between the Complainant and the defendants. They do dispute 33 the Complainant's evidence that she did not consent to that sexual activity. In the instant case 34 there is nt for this couion on the net for this couion to in e direc 35 no requiremerrt to give a dioration. 36 43. lering Wyatt 37 l complainant c 20 minut 38 becoming too distressed to continue. There was strong corroborative evidence of her complaint. 39 The judge does not appear to have given the jury a warning of the sort given by the judge in ```
Slrellon and McCallion: but he did direct them fairly on the evidence of the girl and left it to them to determine her credibility. The conviction was upheld.
In *Lawless* the court doubted whether any direction, however strongly expressed, could have overcome the powerful prejudice of Davison's damning evidence going wholly unchallenged and untested by cross-examination. For the reasons given by the appellants' counsel, he was the central figure in the inter-related offences of corruption, deception and fraud with which the appellants were charged. His was the only direct evidence of corruption which, if accepted by the jury, gave meaning to the prosecution case against each of them on their involvement with Davison in deceiving and defrauding their employer.
*Lawless* is a case which is a long way from the instant case. If this were a case as in *Lawless* where the complainant's evidence had been wholly unchallenged and untested by cross-examination she being the central figure in the prosecution's case against these defendants the court may well have exercised its discretion in another way. This is not however the case.
In *Lawless*, the court was also faced with a deficiency in the direction regarding the lack of cross-examination. The court found that the judge's direction that the the jury were "to assume that cross-examination would have 'weakened or destroyed' Davison's evidence, meant that 'their only proper course would have been to assume that it would have been destroyed. That being so, the Judge should have directed the Jury to ignore his evidence altogether. In our view, that would have been the nearest he could have got by way of direction to overcoming the substantial prejudice to the appellants resulting from the untested evidence of Davison."
In *Lawless* apart from the matter of the lack of cross-examination itself, the court found that the judge's direction on corroboration of the accomplice's unchallenged and untested evidence, was deficient. He did not direct them positively or fully on corroboration. The issues of fact in the case to which it related, or to the evidence, if any, capable of amounting to corroboration on those issues. This was a material irregularity.
I am satisfied that the case against these Defendants should continue. After considering *Lawless* still remains. The thirnetill remains the court's view. The further application to the court by counsel dant #2 is der application again, this the court's view to the court for the Defemied.
**Hon Justice Marlene Carter** Acting Judge of the Grand Court 220504 The Queen v Antonio Marshall & Ericka Lynch – Ruling