Carter J
```html 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CRIMINAL SIDE 3 4 INDICTMENT NO：40 of 2019 5 6 7 8 THE QUEEN 9 10 v. 11 12 JAMES FILANCHIE ELLIS 13 14 15 16 Appearances： 17 Ms. Darlene Oko，Senior Crown Counsel for the 18 Crown 19 20 Mr. Jonathon Hughes，Counsel for the Defendant 21 22 Before： 23 Justice Marlene I. Carter (Actg.) 24 25 Judge Alone Trial： 26 2-3，7th and 9th of July 2020 27 28 Delivery of Decision： 29 25th August 2020 30 31 32 33 34 HEADNOTE 35 Attempted Rape-Assault by Penetration 36 - Trial by Judge Alone - 37 38 VE 28 DGMEN 39 ERDICT 30 JU 40 41 42 Verdict Judgment：R v Ellis (James Filanchie). Coram：Carter J. (Actg.) Date：25.08.2020 Page 1 of 38 ```
Preamble
Section 31 of the Criminal Procedure Code (CPC) (2019 Revision) states as follows: ## 31. (1) Anonymity of complainants in rape etc. cases: After a person is accused of a rape offence, no matter likely to lead members of the public to identify a woman as the woman against whom the offence is alleged to have been committed shall be published in a written publication available to the public or be broadcast, except as authorised by a direction of the court. ## (2) In this section — “rape offence” means rape, attempted rape, conspiracy to commit rape, aiding, abetting, counselling or procuring rape or attempted rape, and incitement to rape. ## (3) For the purpose of this section, a person is accused of a rape offence if — (a) a charge is laid alleging that he has committed a rape offence; (b) he appears before a court charged with a rape offence; (c) a court before which he is appearing commits him for trial on a new charge alleging a rape offence; or (d) a bill of indictment charging him with a rape offence is preferred before a court in which he may lawfully be indicted for the offence. ## (4) ... ## (5) If any matter is published or broadcast in contravention of subsection (1), the following persons — (a) in the case of a publication in a newspaper or periodical, the proprietor, editor and publisher of the newspaper or periodical; (b) in the case of any other publication, the person who publishes it; (c) in the case of a broadcast, any person having functions in relation to the programming in which it is broadcast, are each liable on conviction one thousand dollars and a fine of one thousand dollars. ## 2. In pursuance of the Section, this Judgment has been anonymized to protect the identity of the complainant. --- Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 2 of 38
```markdown # INDICTMENT
The five-count indictment, filed in the Grand Court on the 14th May 2019 charged the defendant as follows: Count 1 - Attempted Rape; Counts 2 and 3 - Assault by Penetration; Count 4 - Burglary; and Count 5 - Assault Causing Actual Bodily Harm.
On the first day of trial Counsel for the Prosecution informed the court that the Crown would not offer any evidence on count 5 of the Indictment. The defendant was discharged on Count 5.
The trial proceeded on Counts 1- 4 of the Indictment which read as follows:
i. **Count 1:** Attempted Rape, contrary to s.129 of the Penal Code (2019 Revision). The Particulars of the offence being that the defendant, on the 6th day of May 2019, at [--], attempted to have unlawful sexual intercourse with N, without her consent.
ii. **Count 2:** Assault by penetration, contrary to s.132A of the Penal Code (2019 Revision). The Particulars of the offence being that the defendant, on the 6th day of May 2019, at [--], intentionally, and for the purposes of obtaining sexual gratification, penetrated the mouth of N with his penis, without her consent.
iii. **Count 3:** Assault by penetration, contrary to s.132A of the Penal Code (2019 Revision). The Particulars of the offence being that the defendant, on the 6th day of May 2019, at [--], intentionally, and for the purposes of obtaining sexual gratification, penetrated the mouth of N with his fingers, without her consent.
iv. **Count 4:** Burglary, contrary to s.243 of the Penal Code (2019 Revision). The Particulars of the offence being that the defendant, on the 6th day of May 2019, at [--], intentionally, and for the purposes of obtaining sexual gratification, entered a building, namely, a residence at [--] as a trespasser with intent to commit the offence of rape. --- Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 3 of 38 ```
```html 1 6. The defendant elected trial by Judge alone pursuant to s.129 of the Criminal Procedure Code. 2 3 THE LAW ON JUDGE ALONE TRIALS 4 5 6 7. The Cayman Islands Court of Appeal (CICA) has given some guidance on the 7 duties of a Judge in a Judge Alone trial. In K. Richards v R? Rowe JA, stated: 8 9 10 11 12 13 14 15 “When a trial judge sitting alone has advised himself to the applicable 16 8. principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did in order to demonstrate that he has acted with the requisite degree of caution in 17 18 19 20 21 22 23 24 mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge’s mind upon the matter should be clearly revealed.” 25 9. As in all criminal trials the burden is on the Crown to prove beyond a reasonable doubt that the 26 27 Defendant committed the offences for which he is on trial. 28 29 10. There is no burden on the Defendant to prove that he is innocent. There is no onus on the 30 Defendant at all. has no onus thing at all. The Defendant has no obligation to prove that he is not guilty, 31 to prove any the evidence offered by the prosecution. 32 or to explain offered 33 anot guilty, or 34 in the eviden by the Pro 35 sec 12001CILR 496 2CICA Crim. Appeal No. 2/2010 (Ind. 27/2009) Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 4 of 38 ```
```html 11. During the course of this judgment I will not review every single detail of the evidence. I will 2 address my mind to the important or prominent aspects of the evidence in deciding the critical 3 issues in this case. I will not decide every single point that has been raised - only such matters 4 that will enable me to determine whether the charges on the indictment have been proved. 5 12. I remind myself that I am not to speculate about things or matters that are not covered by the 7 evidence. I must have regard to the whole of the evidence that has been presented at trial and form 8 my own judgment about that evidence and determine the questions of fact at issue on this trial. 9 13. If after considering all the evidence in this case, I have any reasonable doubt as to whether the 11 Defendant is guilty or not, I must resolve that doubt in favour of the Defendant and find him not 12 guilty of the offences for which he is charged. 13 14. On the other hand, if having considered the evidence I am satisfied so that there is no reasonable 15 doubt in my mind, and I am sure of the guilt of the Defendant, then it will be equally my duty in 16 law to find him guilty as charged of the offences on the indictment. 17 18. THE PROSECUTION CASE 19 20. The Statement of Admitted Facts reads: "Pursuant to section 34 of the Evidence Law (2019 21 Revision), the following facts are hereby admitted by the defence as conclusive proof of the fact 22 so admitted such that no further proof of the fact by the prosecution is thereby required: 23 i. The identity of the defendant, James Filanchie Ellis. 24 ii. The photographs taken of the complainant by SOCO B. Parchment on May 6th 25 and BP1) acictographs hot 26 9 at approxi offence [ 27 201mately 11 the allegat tle 28 subject location] as of that date. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 5 of 38 ```
```html 1 iii. The statement of SOCO Brittney Parchment dated April 23, 2020 will be read 2 into the record and admitted by consent. 3 4 iv. Continuity of all exhibits collected by SOCO Brittney Parchment and submitted 5 and received by the forensic DNA laboratory is admitted and will not in issue. 6 7 v. The photographs taken of the complainant by SOCO Sarah Hough on May 6th at 8 1：23 p.m. (photos 84-93) and of the defendant on May 7, 2019 (photos 81-83) 9 accurately depict the condition of the complainant and defendant at that time. 10 11 vi. The interview of the defendant was audio and video recorded and taken by D/C 12 Lexine Welcome and DC Reid on May 7, 2019 in the presence of [his] attorney 13 (Exhibit JW/JE1) and is admitted by consent. 14 15 vii. The redacted transcripts of the ABE interview of the complainant is an accurate 16 transcription of the ABE interview and will be admitted as an aid to the respective 17 recording by consent. 18 19 viii. A buccal swab from， the boyfriend of the complainant， was taken on May 10， 2019 20 for the purposes of the subsequent DNA analysis. 21 22 ix. The statement of PC Camile Haughton dated May 13， 2019 (trial bundle page 23 12) will be read into the record and admitted by consent. 24 25 x. The statement of Auxiliary Constable Balford Pennicooke dated May 8， 2019 26 (trial 14) will be read into the record aby 27 read into nd the consent. 28 29 xi. The complainant was examined at the GT hospital on May 6， 2019 at 7：51 a.m. 30 by Doctor Samantha McHayle who documented the following： ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \usepackage{amsmath} \usepackage{tabularx} \usepackage{multicol} \usepackage{enumitem} \usepackage{titlesec} \usepackage{fancyhdr} \usepackage{lastpage} \usepackage{datetime} \usepackage{datetime2} \usepackage{datetime3} \usepackage{datetime4} \usepackage{datetime5} \usepackage{datetime6} \usepackage{datetime7} \usepackage{datetime8} \usepackage{datetime9} \usepackage{datetime10} \usepackage{datetime11} \usepackage{datetime12} \usepackage{datetime13} \usepackage{datetime14} \usepackage{datetime15} \usepackage{datetime16} \usepackage{datetime17} \usepackage{datetime18} \usepackage{datetime19} \usepackage{datetime20} \usepackage{datetime21} \usepackage{datetime22} \usepackage{datetime23} \usepackage{datetime24} \usepackage{datetime25} 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```markdown # Hoarseness ## Mild tenderness to anterior neck over the hyoid bone and tracheal cartilages. ## Multiple bruises and superficial abrasions to the upper chest bilaterally with mild tenderness ## Bruises to the upper outer quadrant of the left breast ## 1.5 x 1.5 cm area of swelling, erythema and tenderness to the right cheek/zygomatic region. ### The complainant was further examined at 13:12 p.m. on May 6th, 2019 by Dr. Gyamendra Jhe who documented the following: #### She allegedly was assaulted and strangled. She complained of voice hoarseness. On examination of throat, larynx nothing abnormal was found. She was advised if symptoms continue to see me in clinic after 2 weeks. ### Angela Tanzillo-Swarts, a duly qualified forensic DNA specialist whose expertise is admitted, prepared 2 forensic test reports dated July 10, 2019 and June 12, 2020 as to the results of the forensic testing of the exhibits collected in the course of the investigation by SOCO R. B. Parchna. The reports of Angela Tanzillo-Swarts are accurate and is the forensic evidence supporting the samples received and taken by analysis on all. ```
```markdown The 911 recording of May 6, 2019 is an accurate recording of the 911 call placed to emergency services and the CD with transcript in aid is admitted by consent. The defendant has no antecedent history in the Cayman Islands. Pursuant to the agreed Statement of Admitted facts the Statements of the following officers were read into evidence by the prosecution: i. Scenes of Crime Officer (SOCO) Brittney Parchment dated 23 April 2020 ii. Police Constable Camille Houghton dated 13 May 2019; and iii. Auxillary Constable Balford Pennicooke. The salient aspects of the evidence of these officers are set out below. ### EVIDENCE OF SOCO BRITTNEY PARCHMENT She attended the scene on the 6th May 2019 at 8:42 am. She noticed a pink dress on the couch in the living room of the premises and her attention was drawn to areas where suspected blood was seen in the living room and kitchen/dining area. She noted that the point of entry was a rear bedroom window where she observed the window screen for the said window on the ground nearby. She took photographs of the scene both interior and exterior. She also collected swabs of suspected blood at the scene and noted faint apparent footprint impressions in the suspected blood in the livior area. She took photographs and later exhibited these photographs. She also took swabs of suspected blood taken from the bedroom window, a sexual assault kit, buccal swabs from the complainant, the defendant and the complainant's boyfriend to the Cayman Islands Forensic Science Laboratory for DNA analysis. ``` This transcription accurately reflects the content of the provided page, using Markdown for headings and paragraph structure, HTML for tables (if any were present, which they are not in this case), and LaTeX for math (which is not present in this text).
```html 1 EVIDENCE OF CONSTABLE CAMILLE HAUGHTON 2 3 19. She attended at the scene at 6：21 am on the morning of the 6th of May 2019. She spoke to the complainant and noted that the complainant was "crying hysterically". She observed that the white sleeveless blouse which the complainant was wearing had what appeared to be several blood stains. She also noticed what appeared to be blood on the floor inside the living room area and sections of a passageway in the house. 4 5 6 7 8 9 20. Haughton stated that the complainant kept saying: "him a go kill me, him a go kill me". Her evidence was: [The Complainant] began to explain that her ex-boyfriend Mr. James Filance Ellis had entered her bedroom through a rear window that was left open about 4 am the same morning. He demanded and attempted to have sexual intercourse with her against her will. She said she tried to run outside but Mr. Ellis caught her, lift her up and drop her on the ground. [The Complainant] said Mr. Ellis informed her that if he could not get her, no one else could and is either she is going to die or him." 10 11 12 13 14 15 16 17 EVIDENCE OF AUXILIARY OFFICER PENNICOOKE 18 19 21. This Officer's evidence went only to the fact that he formally charged the defendant for the offences of Attempted Rape, Assault by Penetration, Burglary and Assault Occasioning Actual Bodily Harm on the 8th May 2019. 20 21 22 23. Pursuant to the Statement of Admitted facts the following items/reports were admitted into evidence: 24 25 26 Photographs taken by OFen 27 28 i. Photographs taken by SOCO Sarah Hough, numbering 81-93; 29 30 iii. The audio and video recorded interview of the defendant dated 7th May 2019; Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 9 of 38 ```
```html 1 2 iv. The redacted transcripts of the ABE interview of the complainant dated 6th May 3 2019; 4 v. 2 forensic tests (DNA) reports dated July 10， 2019 and June 12， 2020 prepared 5 by DNA specialist Angela Tanzillo-Swarts; 6 vi. 911 audio recording and transcript of that recording dated May 6th 2019. 7 8 vii. DNA Reports 9 10 23. The most salient findings from the DNA reports are as follows： 11 12 i. Swabs taken from the right areola and nipple of the complainant were positive 13 14 for saliva. DNA analysis revealed that there was multiple-source DNA recovered 15 from these swabs that it was determined originated from two individuals and a 16 major component was separated from that mixture. The result was as follows： 17 18 “The major component consists of a complete， single-source DNA profile 19 matching that of James Ellis. Assuming one contributor and based on the Black 20 population， it is estimated to be 23 quadrillion times more likely to observe this 21 major component if James Ellis is the contributor than if an unknown， unrelated 22 individual is the contributor.” The Complainant’s boyfriend was excluded as a 23 possible contributor to this multiple-source DNA profile. 24 25 ii. With regard to the pink dress： “The presence of human blood was confirmed on 26 the pink dress BP2 were pNA anal： “presence th vas obtained 27 nk dress BP2 ys tests for of NA profihed the pir. Screen positive.” D the A partial ve pink dr saliva oress 28 from the apparent saliva stain. The complainant， the complainant’s boyfriend and 29 the defendant were excluded as possible contributors to that sample. “The ```
```html 1 complete single-source DNA profile obtained from the bloodstain matches that 2 of James. Ellis. Assuming one contributor and based on the Black population, it 3 is estimated to be 23 quadrillion ties more likely to observe this DNA profile if 4 James Ellis is the contributor than if an unknown, unrelated individual is the 5 contributor.” The Complainant and her boyfriend were excluded as possible 6 contributors to this DNA profile. 7 8 iii. Human Blood was also confirmed on the suspected blood inside the point of entry 9 at the complainant’s bedroom window. The DNA report: “The complete, single- 10 source DNA profile obtained from the bloodstain matches that of James Ellis. 11 Assuming one contributor and based on the Black population, it is estimated to 12 be 23 quadrillion times more likely to observe this DNA profile if James Ellis is 13 the contributor than if an unknown, unrelated individual is the contributor.” The 14 Complainant and her boyfriend were excluded as possible contributors to this 15 DNA profile. 16 17 24. The DNA evidence is consistent with the Crown’s version of the incident. 18 19 25. The defendant does not deny that he entered through the complainant’s bedroom window, he does 20 not deny that he was bleeding and that it could have been his blood on the pink dress nor does he 21 deny that he put his mouth to the complainant’s breasts. While the DNA is therefore supportive 22 of the Crown’s evidence, its probative value with regard to the issues in this case is limited. 23 EVIDENCEPLAINTANT 24 TH OF THE CO 26. The ABE interview of the complainant was entered into evidence together with a transcript of that 27 interview. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 11 of 38 ```
The complainant and the defendant were previously in a relationship for approximately six years. The relationship ended a few months before this incident. The defendant wanted the relationship to resume, however the complainant related that she felt that it could not work between them. The transcript records that the complainant was sleeping in her bedroom when she heard someone at her bedroom window at approximately 3 or 4 am on the morning of the 6th of May. She heard her name being called. It was the defendant calling her by name. She did not answer hoping that he would leave. She saw a light coming from the window area and two to three minutes later she heard the screen covering the window being removed. She called out to the defendant asking why he was trying to break in and he answered her saying that he was calling her by phone but she was not answering the phone. When she saw the defendant entering the bedroom through the window she got off her bed and picked up her phone but the defendant, who had entered the room by this time, grabbed the phone from her. She tried to get the phone from him and he pushed her unto the bed and was holding her by her throat and asking her why she did not want to talk to him. When the complainant said to the defendant that their relationship was over, the defendant stated: "No it’s not over because me and you not left". He started to kiss her. The defendant said to her that he wanted to have sex with her. The complainant’s response was: "No, I don’t want to have no sex with you." She told him "it cannot work like that". It was at this point that the complainant related: "now try to hold on to my necze ny body,..res k nqnd suck u.m complainatha time I resv to hold on tp n it ...". That eist when ...he start tokiss me up p an ow, squeeze ce try to a revi t she was wearing a white marina only, without underwear at the time. She described that the defendant was sucking on her face, all the while holding her on the bed. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 12 of 38
```html 1 32. She described that the defendant appeared to calm down and that he sat down in the bedroom and started to cry. The complainant moved to the sofa in the living room, trying to get away from him at this point, as she stated she wanted to go towards the door to the premises. But the defendant grabbed her again and pushed her on to the sofa. The complainant described: 2 33. She described further: 3 34. The complainant related that the defendant had stripped himself once he had entered the bedroom. In answer to a question posed by the Investigating Officer (IO) she stated: (I have used IO for Investigating Officer instead of the Officer’s initials as that is an easier reference at this stage. For the complainant I have used ‘N’- in line with what was used in the indictment (see page 1) and also to assist with anonymizing) 4 22 “IO:Alright so you say you were in the sofa and you say you bit him while you were in the sofa 5 24 N:Yes 6 25 IO:At any time his penis enter your vagina? 7 26 IO:I wouldn’t say go into it but he was just like that at the mouth, but he, he dead so 8 27 28 29 30 31 35. The complainant described that she was able to get away from the defendant when he insisted he wanted to have sex with her and she told him she would not have sex with him without a condom. ```
```html 1 When he went in search of the condom she ran out of the house. She ran to the back of the house 2 to ask the neighbour for assistance. The defendant followed her and lifted her up to bring her back 3 into the house. She resisted him and fell in the yard trying to get away from him. She related that 4 she tried to get him to leave telling him that the Police were coming and that she would not say 5 anything to them. The defendant left the premises before the Police arrived. 6 7 36. When questioned further the complainant clarified: 8 9 “IO: So you have the bruise on your face and some other marks that you show me. 10 N: Ya 11 IO: Was any of these inflicted physically hitting you, or anything like that apart from 12 squeezing your throat 13 N: No strangling me is [just] that was like the physical abuse. 14 IO: Ok 15 N: But by these scars I feel that it is wrestling. Here it seem like he want to bite me 16 at the face, but true I scream out and say you are going to bite me like he just suck 17 it and dry it you know like squeeze me hard 18 ... 19 N: ... he never lick me or box me or anything but all his mind was just to sex me. 20 IO: Ok 21 N: He just want to sex me or want me to go back to him.” 22 CROSS-EXAMINATION 23 37. The complainant stated that after she and the defendant broke off their relationship they continued 24 to speak on the phone or at the gate to the premises. She stated that he always wanted to come 25 into the he maintained 26 up. Sh after they enc 27 premises. Sld that she 28 bedroom and the defendant came in. She related: “I told him to stop [coming to the house] because 29 I had a relationship not to come around the house but he never get it.” 30 Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 14 of 38 ```
The document is a transcript of a court proceeding, specifically a judgment in the case of R v Ellis (James Filanchie). The judgment was delivered by Carter J. (Actg.) on 25.08.2020. The text is a verbatim transcription of the testimony of the complainant, with page numbers and line numbers provided for reference. The complainant's account is detailed and includes her testimony regarding her interactions with the defendant, her boyfriend, and the events leading up to the alleged assault. The complainant also discusses her previous charges and the restrictions placed on her during that time. The document is marked with the seal of the Grand Court of the Cayman Islands Government. ```markdown The complainant accepted that she was charged previously for assaulting the defendant. She testified that during the time that that case was before the Summary Court she was restrained from going within 100ft of the defendant. She described that she had reacted after the defendant had "boxed" her but he was not charged. She denied that she had made a report of the allegations in this case because of what had happened. The complainant testified that on the night of the 5th of May 2019, her boyfriend, had come over to see her. She stated that she did not remember if she had sex with her boyfriend that evening, then denied that they had had sex at all. When it was suggested to the complainant that she told the defendant that she did have sex earlier in the evening her response was: "I told him that I had sex so I didn't want him to have any so he put his finger up in me to prove if it was true. When he want sex and I said I had sex and had a discharge he put his finger to see if it is true. I did not want him to want it. I wanted to get him away." It was suggested to the complainant that in her interview she never described this sequence of events to the police and that she told the Police that he only inserted his finger into her vagina for examination or to ascertain whether she had inserted a contraceptive. She replied that the defendant was putting his fingers into her vagina not just to check whether she had sex but also for his gratification. "He was doing it also to let his penis stand up, so it's the same thing." The complainant testified that she did not want the defendant to come into her bedroom. She said that when she saw him entering she moved off the bed to get to her phone and that he grabbed the phone from her and pushed her on to the bed. It was at this point that he was trying to have sex with squeezing her and was straught. She denied that they were just talking for three hours. She stated that she struggled with him from the bedroom to the living room and then outside. "I was trying to fight back and escape over the three hours. At one point in time when he started crying, I think he would calm and I would talk ``` The document is a verbatim transcription of the complainant's testimony, with no additional content or interpretation added.
```html 1 to him and try to get him out of the house but every time it's like he would build up another force." 2 She explained why she bit the defendant: "I bit him because he was pushing his tongue in my 3 mouth. I don't know about this being the rough way we had sex in the past" 4 43. 5 When it was suggested to her that the defendant did not put his penis into her vagina, she said: "... 6 he was at the mouth [of my vagina] trying to force it. He wanted to have sex with me. I know it 7 is serious, I never said he try to rape me. I said he was trying to have sex with me." "He wanted 8 to have sex and tried to eat up my body and force his dead penis into my vagina. He is lying if he 9 said he never tried to do that." She denied that she had taken $100.00 from the complainant to 10 have sex with him. 11 44. 12 In Re-Examination the complainant related another incident approximately one month prior to the 13 incident before the court when the defendant had come to the house, had jumped the fence to come 14 in saying he wanted them to get back together. She described that he entered the house and was 15 standing over her. She did not call the police on that occasion. She reiterated that she did not give 16 the defendant permission on the 6th of May 2019 to access her bedroom window. 17 18 THE EVIDENCE OF DR. GILLIAN EVANS-BELFONTE 19 45. 20 Dr. Gillian Evans-Belfonte examined the complainant on the date of the incident at the George 21 Town Hospital. The Crown applied for the Doctor's evidence to be received as expert testimony. 22 Dr. Belfonte stated that she was had training and experience both as a medical doctor and 23 gynaecologist. She is a graduate of the Faculty of Medicine at the University of the West Indies 24 and congraduate tra ited Kingdon 25 Uniber of The 25 ISLANDS 26 College of Obstetricians and Gynaecologists. Dr. Belafonte related that in 2018 she undertook a 27 specialist course in Forensic Sexual Assault Examination and that this training included the 28 assessment of certain injuries to victims of sexual assault. Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 16 of 38 ```
```html 1 2 46. She testified that she was qualified to offer an opinion with respect to an allegation that an individual or a victim has been strangled, that is, as to whether in fact the injuries support such an allegation. The Court deemed the doctor a specialist, medical doctor especially in terms of gynaecology but I do say that that doesn't preclude her from being able to give an opinion with regard to whether the injuries that she observed might have been consistent with strangulation. 7 8 47. Dr. Belfonte testified that she noted the following when she examined the complainant on the 6th of May 2019: 10 11 i. the complainant appeared upset; 12 she was speaking in a very loud hoarse whisper which Dr. described as not her normal voice; 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792
```html 1 48. The doctor also noted: 2 i. on Examination of her external genitalia, a horizontal abrasion on the right lip, 3 the right labia majora. 4 ii. Close to the posterior opening of the vagina she noted secretions or a discharge, 5 coming from inside the introitus, the opening to the vagina. 6 iii. a small area of redness around the opening of the cervix. 7 8 49. The doctor testified that she referred the complainant to an Ear/Nose and Throat specialist 9 because of the injuries she noted to the complainant’s neck. She related that she was concerned 10 because there could be internal damage that she would not be able to see upon that physical 11 examination and hence the referral to ENT. 12 13 50. The Doctor testified that she came to the following conclusions: 14 15 “That they [the injuries] were consistent to having been obtained recently and so 16 could possibly have been obtained during the time of the alleged assault. The 17 abrasion on her wrist, because of the nature of it being a linear abrasion, could 18 have been caused possibly by a fingernail. On her right elbow that abrasion was 19 consistent with recent trauma but I was not able to say what caused it. The 20 prominence of vessels in her left eye may be related to strangulation, taking into 21 account as well her effect of speech and pain in her neck it was highly probably 22 that she had experienced a degree of strangulation. The abrasion on her labia, the 23 genital area could possibly have been caused by a fingernail. The genital, the 24 al examine vagina, with examination within the cervix was difficult to say if 25 there was any assault because she had had delivery and it is normal to 26 find similar changes in someone who is recently sexually active.” Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 18 of 38 ```
```html 1 51. She went on: 2 3 “On examination of her vagina... because the findings may also be consistent with 4 consensual sexual activity...with the evidence of blunt trauma on the labia -- um- 5 - suggest some form of attempted sexual assault.” 6 7 CROSS EXAMINATION 8 9 52. Dr. Belfonte agreed that the injury noted to the labia, was an abrasion, a superficial injury and 10 could be caused by consensual sexual intercourse. She stated that the complainant had related 11 to her that she had had recent sexual activity on the evening prior to the incident “at about 12 22：00 hours on the night before, on the 5th and a condom was used.” 13 14 53. The Doctor agreed that where someone sucks on skin and causes blood to come to the surface 15 and leave a mark that the bruise caused would not be any different to a blunt trauma bruise in 16 terms of how it would appear? With regard to the complainant’s bruises, “If there were teeth 17 marks that I could see then I would think about biting but it was just discolored skin, a bruise” 18 19 54. When questioned about her conclusion that the complainant had been strangled given that she 20 did not notice any marks or bruising on the complainant’s neck and the ENT specialist had not 21 noted any abnormalities to her larynx, Dr. Belfonte confirmed that that conclusion was reached 22 when coupled with other factors noted, specifically, hoarseness in the voice, tenderness to the 23 touch and the account given by the complainant. The doctor maintained that because she spent 24 approx. 3-4 hours with the complainant during her examination she would not say that these 25 last were faked 26 had described to the complainant’s conclusion be 27 three factors out she di 28 55. I accept the Doctor’s evidence. 29 Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 19 of 38 ```
THE COMPLAINANT'S BOYFRIEND 'MR. X'
Mr. X was the complainant's boyfriend on the 5th of May 2019. He testified that they had been in a relationship since January 2019. He was at her home on the night of the 5th of May 2019 and left there at some time after 10:00 pm. He recalled that he did not plan to return there the next morning as it was a Monday and this would have been a work day for him. He remembered that when he left that evening he locked the front door to the premises and also turned the lock on the gate to the premises and that he always closed it at night. He became aware of an incident on the 6th of May when the complainant's friend sent him a photograph of the complainant by phone.
When Mr. X was cross-examined, he stated that over the course of the evening, during his visit on the 5th of May 2019 he and the complainant did not have sex. When confronted with his previous statement that he had given to the police in which it was stated that they did have sexual intercourse that evening, Mr. X stated: "I can't remember if we had sex. I would not lie to the Police. I did not have sex. I don't think that I did." He suggested that the officer taking the statement may not have heard what he said but accepted that he did read over the statement before he signed it and did not ask for the contents to be changed.
I do not believe Mr. X when he testified that he had not had sex with the complainant earlier on the night of the incident. He could not give an explanation for the inconsistency between his evidence in court and his signed witness statement on this issue. I remind myself that I can accept some of a witness' evidence and reject other parts of that witness's evidence. I believe the aspects of his evidence with regard to his having secured the premises on the eve of the 5th of May 2019 are reliable. Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 20 of 38
```markdown # FRIEND OF THE COMPLAINANT – 'Ms. B'
Ms. B is a friend of the complainant who lived in the same vicinity as the complainant. She related in evidence that on the 6th of May 2019, she was on her way to work when someone said something to her. As a result, she called the complainant by phone. The complainant answered and was crying. Ms. B related that this caused her to turn around to go to the complainant’s home. She went to where the complainant lived. The Police were there. When she saw the complainant, the complainant was dressed in a T-shirt which Ms. B described as being “full of blood”. Ms. B related that she took a photograph of the complainant before she left in the ambulance soon thereafter and also photos of spots on the tiles in the living area. The complainant asked her to take the photographs.
Ms. B recalled an incident prior to the 6th of May 2018 when she went to see the complainant where she lived. The defendant was at the premises. She knew they had broken up. The complainant indicated to her that the defendant was to the back of the premises. She said the complainant “kinda look frighten”. She went around the back of the premises and saw the defendant sitting at the complainant’s bedroom window. She described that the defendant was holding his head and crying. When she said to him then that he was not supposed to be there at the premises he said: “I love [saying the complainant’s name], I love [saying the complainant’s name]. I don’t think I can live with this.”
I found Ms. B to be a truthful witness. I found no reason to doubt what she related in her evidence before the court. **GHBOUR –** **NEIMS. F’**
Ms. F testified that at the time of the incident she lived behind the premises where the complainant lived and worked but there was no prior personal relationship between them. She ```
```html 1 related that between 6-7am on the 6th of May she was on her way out when she heard someone cry out. She related that she heard someone say: "Somebody help me please." It was stated several times. She realized that the cry came from the back of the property. She went there and she saw the complainant. 5 63. The complainant asked her to call the Police and said to her that her ex-boyfriend was beating her up. She related that as she started to dial the Police the complainant asked her to move away from the fence so that her ex-boyfriend could not see her calling. She stated that she left the area of the fence and called the Police. She related that when she first saw the complainant: "She looked distressed. She was actually in her underwear and a white top, with stains on it". She explained "When I say distressed, I mean if she could have come through the fence she would have to get away from whatever it was." 13 64. In cross-examination she stated that the complainant was not wearing any pants or a skirt, but she was unsure if she was wearing any underwear at the time that she saw her. 16 65. I found Ms. F to be a truthful witness. I found no reason to doubt what she related in her evidence before the court. On the issue of whether she could say with certainty whether the complainant was wearing underwear at the time that she saw her on the morning of the 6th of May, the witness was obviously unsure. This does not cause me the find that I cannot rely on her evidence of the complainant's demeanour on that morning. 23 LEXINE WELCOME-INVESTIGATING OFFICER 26 complainant a ghtened aancn the day nt. y hoarse. 66. Offic took a report and complainant of ice was vlat the cappeared frigt o l that herver. She noted 27 collected samples taken by Dr. Belfonte from the complainant during examination and later that day recorded the complainant's interview. She also conducted the interview of the ```
```html 1 defendant the following day. This interviews were audio and video recorded. The Officer 2 confirmed complainant's evidence that on the 16th of May 2019 she received items of clothing 3 from the complainant, taken from a couch in the living room of the residence 4 5 67. When she was cross-examined by Defence counsel she related that as part of her investigation 6 she took a statement from the complainant's boyfriend. That statement was typed and read 7 over by the witness and signed. She recalled that the complainant's boyfriend did not take 8 issue with anything in the statement at that time. The Officer confirmed that when she recorded 9 in the statement from the complainant's boyfriend he told her at the time, that he had had sexual 10 intercourse with the complainant on the 5th of May 2019. 11 12 68. I accept Officer Welcome's evidence. 13 14 69. That was the extent of the evidence relied on by the prosecution to prove its case against the 15 Defendant on Counts 1 to 4 of the indictment. 16 17 THE DEFENCE CASE 18 19 70. The defendant elected at the close of the prosecution case to give evidence in his defence. I 20 remind myself that I must assess the evidence of the defendant in the same objective and 21 dispassionate manner as I would any witness for the prosecution. 22 23 71. The defendant has no antecedent history in the Cayman Islands. It has not been suggested to 24 me that there is any other previous conduct to be considered. I remind myself that his good 25 chan defence to ence his go s a positihc oubt but befe nt in his 26 ve before thieca ke into acfavven 27 evidd character is c h I shouldc ndant has 28 character is not the charg es l feature w taluse the d gi our 29 when considering whether I accept his account of the incident. I also remind myself that the 30 fact that the defendant has not offended in the past may make it less likely that the defendant Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 23 of 38 ```
```html 1 acted as the prosecution alleges in this case. I bear these in mind as I consider the defendant's 2 account and also the prosecution's case against the defendant. 3 4 EVIDENCE OF THE DEFENDANT 5 6 72. The defendant described his relationship with the complainant and also described the incident 7 which led to the complainant being charged with assault before the summary court. The 8 defendant maintained that that incident had only "interrupted" the relationship between himself 9 and the complainant. His evidence was that their relationship was still ongoing even after the 10 court matter was concluded except that he did not live with the complainant anymore. He 11 testified that between the time that he moved out in December 2018 and the incident in May 12 2019, he was visiting the premises on a weekly basis. The defendant stated that he and the 13 complainant continued to have sex during this time. There is no issue that he and the 14 complainant had previously lived together for approximately 6 years. 15 16 73. The defendant testified that within the week leading up to the incident the complainant told 17 him she would not open the door to him and that he must find his way through. He described 18 that when he lived with the complainant that he sometimes would have to go over the fence of 19 the premises and enter through a window because the complainant had never given him a key 20 to the premises. He stated: "I had gotten into the habit of using the window. I can count many 21 times, many times I used the window. [the complainant] never had a problem with this." 22 23 74. The defendant stated that on the 5th of May 2019 he told the complainant that he was going to 24 com her and she s. He decide 25 am ig. He testified 26 that it usual 27 that time. He stated that he was going to see her to talk to her. He remembered that before 28 taking his phone out when he was at the window "to see what happen to her". He stated: "I Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 24 of 38 ```
The defendant stated that when he entered the bedroom the complainant moved to the living room area and told him to go there too. He said that the complainant asked him why he was there, and he replied: "I said I been calling you and I never get you, so I come to see you, to talk to you about our relationship." He denied throwing the complainant unto the bed in the bedroom and choking her. He admitted that he did take her phone from her "because she is always calling my mother or calling the Police on me and I didn't want her to do that at the time." The defendant testified that the complainant was always threatening that she was going to lock him up. He repeated that his intention was just to talk to her. The defendant stated that when he and the complainant were in the living room on the settee, at some point he took off his clothing because "when we were there talking each time I am around her I always take off my clothes, all of my clothes." The defendant described that he and the complainant sat and talked and then they started kissing. He testified: "She was kissing me ...I kiss her on her forehead, cheek, chest and on her breasts." He stated that the complainant "she just like ignorant in making love" and stated that the cut to his face was as a result of the complainant clawing him to his face with her fingers. He stated that she bit him on his finger and his cheek in the area of his lower right jaw. The defendant stated in evidence: "She did not make any complaint about me getting to her, make mal like to be really lam undintention, I just want to be wi talk our life norf sh e before."
The defendant stated that he never mentioned anything about sex to the complainant. However, when it was stated to him by defence counsel that the complainant said that he had, he replied as follows: "I mention sex to her and she said she was using an insert [contraceptive] and she cannot sex so I leave it like that." He denied that he left the sofa to go looking for a condom, saying that they did not usually use condoms when they had sex. He denied that he put his finger in the complainant's vagina. He stated that he did not touch her vagina in any way on the morning of the 6th of May. The defendant denied that he tried to put his penis in the complainant's vagina. He stated: "At no point or any way I tried to have sex with her. I did not go there to do that. I did not have an erection." The defendant related that everything changed between him and the complainant that morning when he mentioned an old boyfriend of hers. He stated: "She get ignorant and start to fuss up herself and I say calm down why you getting ignorant like that. She start to cuss her bad word and get ignorant and I try to calm her down." The defendant stated that it was at this point that the complainant ran outside. He went outside to try to persuade her to come back into the house but she was just bawling out for help saying murder, rape, murder. He stated that he did not know why she behaved like that. He also described trying to pick up the complainant to take her back into the house. He left when the complainant said to him that he must leave because the police were coming. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 26 of 38
```html 1 CROSS -EXAMINATION 2 3 82. In cross examination the defendant repeated that the relationship between himself and the complainant never ended even after the court case was finished. He stated that the complainant was being untruthful when she said that they did not have sex after the court case was ended. He testified that the complainant told him to hide and not let anyone see him visiting her but he still visited her at the house. The defendant related that the complainant never told him she was in another relationship and that she kept calling and telling him that she loved him and to come over to have sex. 4 5 6 7 8 9 10 11 83. The defendant stated that on the morning in question the complainant told him he could come over to the house. "I call her earlier and spoke to her and tell her I am coming to her house. I told her I was coming and she tell me I could come." The defendant stated in answer to crown counsel that he did not knock at the front door nor at the back door to the house, but that he went to her bedroom window. He denied that he had cut his hand as he entered through the bedroom window and instead said that his finger was cut later in the morning when the complainant bit him and that the blood noted on the window must have got there when he went to the bedroom window to call to her after she ran outside. 12 13 14 15 16 17 18 19 20 84. When it was suggested to the defendant that the injuries found on the complainant were not consistent with what crown counsel referred as a "consensual loving environment" the defendant replied that the marks were from kissing her because her skin is light and so when he kissed her it left a mark. 21 22 23 24 25 85. Wh to the defendant Police plai 26 27 him to the house when interviewed he stated that he had seen her on the previous evening but when he tried to call her he could not get her so her went to the house to see her. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 27 of 38 ```
```html 1 86. He denied that he had gone to the house for sex. He denied trying to put his penis in her vagina. 2 He denied that he held her throat and squeezed her. He denied that he was upset that she was 3 in a new relationship. He denied that he had asked her for sex and had left her to go to try to 4 find a condom saying: "I would carry a condom with me, or I would sex her without it because 5 we normally have sex without a condom." He denied that he told the Police in interview that 6 he had left a bag of condoms there at the house after he moved out. 7 87. In the record of interview of the defendant, the defendant contradicted his evidence at trial on 8 crucial details. With regard to discussion about sex he stated: 9 10 11 “IO: So when you reach in the house and you talking to her that was when you 12 take off your clothes because you already paid her - you already give her 13 the $100 for some sex. 14 JE: Yeah but never - never had plan to rape her. 15 16 IO: Alright, so what did you say to her when you take off your clothes? 17 JE: Me say babes what happened you give me - you give me some sex or wah? 18 19 IO: And what did she say? 20 21 JE: She say have - she - she ah use an insert - like she ah insert her body. Me 22 say alright no problem. And we deh talk, talk, talk” 23 24 25. He stated in interview that there was a discussion about sex but the complainant never said to 26 him that she would have sex with him. 27 28 On the condoms 9. On true condoms nce ws: 9. On true condoms was as f 29 29 in intervollc 28 ae matter or t nis eviaeiew 30 30 22 matter of this evide “Me did leave 1 bag of condom up there from...when me and her used to live and 31 me asked her what she did with the condoms and she say she dashed them away”. ``` This is a faithful transcription of the page, using Markdown for headings and paragraph structure, HTML for tables, and LaTeX for math. The content is directly extracted from the image provided.
```html 1 This is in contradiction to his earlier statement in the interview on this point and also to his 2 evidence in court. 3 4 90. The defendant's record of interview revealed some seeming incoherence when answering 5 questions put to him by the investigating officer. While I have considered this evidence in 6 arriving at a verdict in this case, I do not place too heavy a reliance on the inconsistencies 7 identified between the record of interview and the defendant's evidence on oath at trial because 8 9 91. I found the defendant to be an uncomplicated man who clearly has strong feelings for the 10 complainant. His evidence corroborated much of the Crown's evidence: 11 12 13 i. that he entered the house through the complainant's bedroom window; 14 15 ii. that he took his clothes off while he was within the residence; 16 17 iii. that he was kissing the complainant; 18 19 iv. the length of time that they remained together that morning; 20 21 v. that they were talking about their relationship and what had caused it to end; 22 23 vi. that he left before the police arrived. 24 25 92. It is on the crucial aspects relating directly to the counts on the indictment in terms of intention 26 27 and consent that the parties differ. In this regard, the explanations given by the defendant do 28 not follow. 29 30 93. I do his evidencendressed bea nar e would way 31 26 he complainant believe that 32 25 not believe about being what he alwa it. I do not h the 33 20 was in the co; complaint b e taken av 34 27 complainant's phone as he entered the bedroom if he went there only to talk about their relationship. I do not believe his evidence on oath that there was no discussion about sex. 35 Verdict Judgment: R v Ellis (James Filanche). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 29 of 38 ```
```html 1 94. I remind myself that if I do not accept the defendant account I must still return to the Crown's 2 case to look for evidence that the crown has proved its case to the requisite standard before I 3 can find the defendant guilty, there being no onus on the defendant to prove that he is innocent. 4 If the Crown's evidence does not make me sure of the Defendant's guilt, then my verdict must 5 be not guilty. 6 7 COURT'S REASONING AND CONCLUSIONS 8 9 95. At the end of the prosecution case Counsel for the defendant submitted that there was no case 10 to answer against the defendant with respect to count 2 on the indictment. Counsel for the 11 prosecution conceded that the evidence led by the prosecution did not support that count on the 12 indictment. The defendant is formally discharged of count 2 on the Indictmen 13 14 15 COUNT 1 - ATTEMPTED RAPE 16 17 96. Section 129 of the Penal Code states: 18 19 20 21 22 23 24 25 26 27 28 29 97. “A man commits rape if- 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765
```html 1 98. It is evident to this court from the evidence of both the complainant and the defendant that their 2 relationship was turbulent at times. The defendant appeared unable to accept that their 3 relationship had broken down. I accept the complainant’s evidence that she had moved on 4 from her relationship with the defendant and I accept the evidence of both the complainant and 5 her boyfriend that they had begun a relationship in the months after the breakdown of the 6 relationship between the defendant and the complainant. The complainant’s boyfriend in his 7 evidence related that he had never seen the defendant, had no concerns about him and had never 8 met him. I also accept the evidence of Ms. B when she described the defendant outside the 9 complainant’s bedroom window in the weeks before the incident as further evidence of the 10 nature of the relationship at that point and the defendant’s reaction to the breakup of the 11 relationship. 12 13 99. I found the complainant to be a frank and truthful witness. I noted no significant inconsistencies 14 in her evidence except what is related in paragraph 101 below. Her description of essentially 15 trying to talk down the defendant on the morning of the 6th of May rings true. 16 She had become 17 frightened that if she did anything to aggravate him that he would have hurt her. I do not 18 believe, as was suggested by counsel for the defendant, that the complainant’s account was an 19 elaborate scheme to get back at the defendant for having reported her to the police and for the 20 subsequent summary court proceedings. The evidence before this court is that the complainant 21 was warned by the court and on a good behavior bond with no conviction recorded against her. 22 100. I also believe the complainant’s evidence that when the defendant had entered the house in 23 il 2019 as sl, that she d 24 id not want any 25 problems or agg 26 he actions w 27 protravation. Th 28 pears to b of 29 g to 30 ese do noe t 31 ho was try 32 get back at the defendant. I can find no justification to attribute that motive to her. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 31 of 38 ```
```html 101. I do find that there is one area where I do not believe the complainant’s evidence. There is a 2 discrepancy between her evidence under oath about whether she had sexual intercourse with 3 her boyfriend on the evening of the 5th of May 2019 and what Dr. Belfonte related that the 4 complainant stated to her when she examined her on the morning of the 6th of May 2019. Dr. 5 Belfonte’s evidence was that the complainant told her that she did have intercourse sometime 6 around 10：00 pm that evening. I believe the Doctor’s evidence on this point especially because 7 this information was part of her written contemporaneous note and relevant to her examination 8 of the complainant after the incident. 9 102. I also do not believe the complainant’s boyfriend that he did not have sexual intercourse with 11 the complainant on the evening previous to the alleged assault. While this court does not 12 make any finding of collusion between these Crown witnesses on this point it is significant that this 13 is the only point on which their evidence on oath significantly departed from their earlier 14 statements；in the case of the complainant’s boyfriend，to the Police，and，in the case of the 15 complainant，to the Doctor. I view it as a major inconsistency in the evidence between these 16 prosecution witnesses and Dr. Belfonte. 17 103. However，I do not find that this causes me to doubt the reliability or credibility of the other 19 aspects of the complainant’s evidence of what occurred between herself and the defendant in 20 the early hours of the 6th of May. 21 104. I accept the complainant’s evidence of what transpired when the defendant entered her 23 bedroom in the early hours of the 6th of May 2019. As noted above. I have taken into account 25 the n previous rel 24 ature of their relationship 26 Verdict Judgment：R v Ellis (James Filanche). Coram：Carter J. (Actg.) Date：25.08.2020 ```
```html 1 105. I do not believe the defendant that the relationship continued between them as he described and 2 that the complainant told him to come over to the house that morning. If she had in fact told 3 him to come over as he testified, it does not follow that he would be calling her repeatedly as 4 he described nor that he would have been forced to enter the premises by taking out the screen 5 to her bedroom window. 6 7 106. The defendant’s actions as the complainant described make me sure that he was intent on 8 having sexual intercourse with the complainant that morning. His actions in stripping himself 9 once he entered the bedroom holding the complainant down on the bed and saying he wanted 10 to have sex with her on the bed in her bedroom, then on the sofa when they were in the living 11 room, choking her, and attempting to put his penis in her vagina make me sure. I believe the 12 complainant that she told the defendant that she did not want to have sex with him. I believe 13 the complainant that she was only able to get away from the defendant by saying that she would 14 have sex with him if he wore a condom. The fact that he released her in order to go to look for 15 the condom is evidence of his intention. 16 17 107. I believe the evidence of the witness Ms. F when she described the complainant’s distress 18 minutes after she ran out of the house: “When I say distressed, I mean if she could have come 19 through the fence she would have to get away from whatever it was.” This is compelling 20 evidence that buttresses the complainant’s evidence of her wanting to get away from the 21 defendant and the nature of the activity within the house that morning, as is the evidence of her 22 struggling with the defendant when he attempted to take her back into the house that morning. 23 108. I had the fact that 24 Ms. F at that there woteot say any the 11 call be 25 as nlainant di th cript of tletwape to M time and that n 1 in the true attempt ive considerat the co mp othing nansing about i een 26 the dispatcher and the EMT attendant at the scene about a report of attempted rape to them. 27 Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 33 of 38 ```
```html 1 109. However, the evidence of the witness Constable Haughton was as follows：[The Complainant] 2 2 begin to explain that her ex-boyfriend Mr. James Filanchie Ellis had entered her bedroom 3 3 through a rear window that was left open about 4 am the same morning. Demanded and 4 4 attempted to have sexual intercourse with her against her will. She said she tried to run outside 5 5 but Mr. Ellis caught her, lift her up and drop her on the ground. [The complainant] said Mr. 6 6 Ellis informed her that if he could not get her, no one else could and is either she is going to 7 7 die or him.” This account of attempted sexual intercourse is consistent with the complainant’s 8 8 evidence at trial. 9 9 10 The medical evidence 11 12 110. The evidence at paragraph 11 of the Statement of Admitted Facts regarding the injuries noted 13 13 on examination of the complainant by Dr. Samantha McHayle, are noted and are consistent 14 14 with the complainant’s account of a struggle with the defendant. 15 16 111. The evidence of Dr. Belfonte with regard to the gynaecological examination of the complainant 17 17 are noted, inter alia： “on Examination of her external genitalia, a horizontal abrasion on the 18 18 right lip, the right labia majora” and “(ix) a small area of redness around the opening of the 19 19 cervix”. Her conclusion was that the blunt force trauma injury to the labia suggested “some 20 20 form of attempted sexual assault.” 21 22 112. The Doctor’s opinion was that the injuries she noted including the injury to the labia, “were 23 23 consistent to having been obtained recently and so could possibly have been obtained during 24 24 the tiedg assault 25 25 abrasion on 26 26 The genital, the internal -- examination within the vagina, within the cervix was difficult to say 27 27 if there was any evidence of -- if it could have been --findings could have been caused by sexual Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 34 of 38 ```
```html 1 assault because she had had recent sexual activity and it is normal to find similar changes in 2 someone who is recently sexually active." 3 4 113. I find that while Dr. Belfonte's evidence was not conclusive as to the cause of the injuries to 5 the complainant that she noted and that many of the injuries that she noted were superficial in 6 nature, this evidence can be taken as indicative of the fact that the complainant and the 7 defendant were involved in some physical jostling on the morning in question and therefore 8 supports the complainant's account to that extent. 9 10 114. The weight of the Doctor's evidence and conclusions on the cause of the injury to the 11 complainant's genital as independent evidence of attempted unlawful sexual assault is 12 impacted by the fact of the complainant's recent sexual activity and the discrepancy in relation 13 to that evidence noted above. I remind myself, however, that the Crown is not required to 14 prove evidence of corroboration and, if I am sure of the evidence of the complainant to support 15 this count of the indictment, I can find the defendant guilty without the need for corroboration. 16 17 115. I am satisfied that the defendant's actions are sufficient to show his intention and I am satisfied 18 so that I am sure that the defendant attempted to have unlawful sexual intercourse with the 19 complainant without her consent. 20 21 COUNT 3-ASSAULT BY PENETRATION 22 23 116. Section 132A of the Penal Code (2019 Revision) states as follows: 24 25 a person, (the purpose 26 ... no ates (when a's body, offe 26 ntionally and of obtain 27 ner person ( isent, penhe any part con 27 "...A) who, fong sexual 28 etobject or wof lly) 28 intel without vr gratification 29 inally or once 29 anocorB), with with 30 r orally, vmanmits an o 31 117. The Crown alleges that the defendant penetrated the defendant's vagina with his finger for the 32 purpose of obtaining sexual gratification, intentionally and without the complainant's consent. Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020 Page 35 of 38 ```
```html 118. The evidence of the complainant with regard to this count was as follows: 119. In cross examination she stated as follows: 120. When it was suggested to the complainant that in her interview she never described this sequence of events to the police she replied that the defendant was putting his fingers into her vagina not just to check whether she had sex: 121. The defendant denies that he penetrated the complainant's vagina with his fingers. I believe the complainant that the defendant penetrated her vagina digitally. The offence of penetration is an offence of specific intent. The Crown must satisfy me so that I am sure that the defendant penetrated the complainant's vagina without her consent and with the intent "for the purpose of obtaining sexual gratification. " The penetration is in nature. I consider the circumstances in which the penetration was done and the complainant's evidence sufficient to conclude that the defendant's purpose was for sexual gratification. ``` ```latex \section{Evidence of the Complainant} The evidence of the complainant with regard to this count was as follows: \begin{quotation} \ldots he just go on like he just get crazy and he want some sex and he want it and he let me go now to try and go between me leg and then he try and he try and he can't stand up to get to sex me so he try to push his hand in when it can't work he shove his fingers in me vagina and start to like dig it, dig it, dig it and just keep kinda of just want some sex. \end{quotation} In cross examination she stated as follows: \begin{quotation} I told him that I had sex so I didn't want him to have any so he put his finger up in me to prove if it was true. When he want sex and I said I had sex and had a discharge he put his finger to see if it is true. I did not want him to want it. I wanted to get him away. \end{quotation} When it was suggested to the complainant that in her interview she never described this sequence of events to the police she replied that the defendant was putting his fingers into her vagina not just to check whether she had sex: \begin{quotation} He was doing it also to let his penis stand up, so it's the same thing. \end{quotation} The defendant denies that he penetrated the complainant's vagina with his fingers. I believe the complainant that the defendant penetrated her vagina digitally. The offence of penetration is an offence of specific intent. The Crown must satisfy me so that I am sure that the defendant penetrated the complainant's vagina without her consent and with the intent "for the purpose of obtaining sexual gratification. " The penetration is in nature. I consider the circumstances in which the penetration was done and the complainant's evidence sufficient to conclude that the defendant's purpose was for sexual gratification. \section{Verdict Judgment} R v Ellis (James Filanche). Coram: Carter J. (Actg). Date: 25.08.2020 Page 36 of 38 ```
```html 1 COUNT 4-BURGLARY GRAND COURT 3 122. Section 243 of the Penal Code states: 01/20 4 5 (1) A person who- (a) enters any building or part of a building as a trespasser and with 6 7 intent to commit any such offence as is mentioned in subsection 8 9 (2)；or 10 11 (b) having entered any building or part of a building as a trespasser 12 13 steals or attempts to steal anything in the building or that part of 14 15 it or inflicts or attempts to inflict on any person therein any 16 17 grievous bodily harm， commits the offence of burglary and is 18 19 liable to imprisonment for fourteen years." 20 21 22 23 24 25 123. I believe the evidence of the complainant and her boyfriend that the premises were secured and 26 27 locked on the evening of the 5th of May 2019 when the complainant's boyfriend left. 28 29 124. I believe the evidence of the complainant that she did not invite the defendant into her home in 30 31 the early morning hours of the 6th of May 2019. The defendant's actions also support this 32 33 finding， specifically his going first to the front door and when he could not access that door 34 35 going to her bedroom window and removing the screen so that he could enter the bedroom 36 37 while she slept， is evidence of his entering as a trespasser. The issue is whether his intention， 38 39 when he entered the complainant's bedroom， was to commit the offence of rape as is alleged 40 41 on the indictment. 42 43 125. I find that I am satisfied so that I am sure that this was the defendant's intention on the evening 44 45 in question. As described above this court can find the defendant's intention from his actions. 46 47 The fact that he took away the complainant's phone as he entered the bedroom uninvited， 48 49 stri， held her dand told her ls the edroom woje 50 51 pped himselfwn on the bhave sex wit act resisted all entered thith 52 53 ed th her and hi ons when sh point to he 54 55 mind. fact that le a clear ol 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529
```html 126. Having considered all of the evidence presented in this case, I am satisfied so that I am sure that the defendant attempted to have unlawful sexual intercourse with the complainant without her consent, that he intentionally penetrated the vagina of the complainant digitally without her consent and for the purpose of obtaining sexual gratification and that he entered her house uninvited, as a trespasser with the intention of raping the complainant. 127. Verdict: i. Count 1: Attempted Unlawful Sexual Intercourse - Guilty ii. Count 3: Assault by Penetration - Guilty iii. Count 4: Burglary - Guilty Dated this 25th day of August, 2020. ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \usepackage{amsmath} \section{Judgment} \begin{enumerate} \item Having considered all of the evidence presented in this case, I am satisfied so that I am sure that the defendant attempted to have unlawful sexual intercourse with the complainant without her consent, that he intentionally penetrated the vagina of the complainant digitally without her consent and for the purpose of obtaining sexual gratification and that he entered her house uninvited, as a trespasser with the intention of raping the complainant. \item Verdict: \begin{enumerate} \item Count 1: Attempted Unlawful Sexual Intercourse - Guilty \item Count 3: Assault by Penetration - Guilty \item Count 4: Burglary - Guilty \end{enumerate} \end{enumerate} Dated this 25th day of August, 2020. \begin{figure}[h] \centering \includegraphics[width=0.5\textwidth]{signature} \caption{Signature of Madam Justice Marlene I. Carter} \end{figure} \begin{flushleft} Madam Justice Marlene I. Carter\\ Judge of the Grand Court (Acting) \end{flushleft} \begin{flushright} Verdict Judgment: R v Ellis (James Filanchie). Coram: Carter J. (Actg.). Date: 25.08.2020\\ Page 38 of 38 \end{flushright}