Wright v The Queen

The safeguard in the Police Law 2010, s 149(2), is mandatory. Before drawing an adverse inference from a defendant’s failure to give evidence, the court must be satisfied that the defendant was advised of both the right to give evidence and the risk of an adverse inference. Failure to conduct the required open-court enquiry is an irregularity, but does not automatically make a conviction unsafe if the advice was in fact given and the omission made no difference. The procedure is not a mere formality. Where a no-miscarriage proviso is considered, the appellate court must ask whether any reasonably possible verdict other than guilty remained, rather than merely whether guilt could have been found.

The appellant was convicted in a judge-alone trial in the Cayman Islands of rape and indecent assault. The trial judge drew an adverse inference from his failure to give evidence, although the open-court procedure required by s 149(2) of the Police Law 2010 had not been followed. The Court of Appeal of the Cayman Islands upheld the conviction.

The appeal concerned whether the procedural omission required the conviction to be quashed, or whether it was immaterial because the appellant had in fact received the necessary advice. The Board also considered the correct test for any no-miscarriage proviso applied by the Court of Appeal.

The Board dismissed the appeal against conviction.

1. Mandatory safeguard. Section 149(2) of the Police Law 2010 is a mandatory safeguard and operates as a public warning to the defendant. It requires the court to satisfy itself that the defendant knows both of the right to give evidence and of the risk of an adverse inference if he does not. The safeguard applies equally where the inference is drawn under s 18(b) of the Cayman Evidence Law, notwithstanding that provision’s pre-existing power to draw a reasonable inference.
2. Materiality of non-compliance. The open-court enquiry is the best method of establishing that the advice was given. Its omission is an irregularity, but does not automatically require the conviction to be quashed. The question is whether the defendant in fact received the necessary advice and whether the omission affected the safety of the conviction.
3. On the evidence, the Board was confident that the appellant had been advised. There had been two discussions with counsel about whether he should testify. The issue of adverse inference arose expressly in the judge’s discussion with counsel, yet counsel did not suggest that the appellant had been misled or that drawing an inference would be unfair. The appellant likewise made no assertion that he had misunderstood the consequences. The approach in R v Farooqui [2014] 1 Cr App 8, para 126, supported treating such an assertion as the usual starting point for investigation. The convictions were therefore safe.
4. Further guidance. The procedure is not a mere formality. Both counsel and judge are responsible for ensuring compliance. Consistently with Tamasa v Regina (CICA 23 of 2013, 12 January and 27 May 2015), failure to comply will ordinarily be a material irregularity unless it can legitimately be concluded that it made no difference.
5. No-miscarriage proviso. If the Court of Appeal relied on the proviso to s 9 of the Court of Appeal Law, it applied the wrong test. The appellate court must review the facts and evidence and form its own opinion on whether there was any reasonably possible verdict other than guilty. It is insufficient to ask merely whether a guilty verdict could have been reached without the adverse inference. That observation was unnecessary to the disposal of the appeal.

The Board advised Her Majesty that the appeal against conviction should be dismissed.

• Privy Council: Dismissed the appeal against conviction, holding that the failure to conduct the s 149(2) enquiry was immaterial because the appellant had in fact received the necessary advice.
• Court of Appeal of the Cayman Islands: Upheld the conviction. If it had relied on the proviso to s 9 of the Court of Appeal Law, the Board held that it had applied the wrong test.