Mettyear J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0057/2011 THE QUEEN V JESSICA ELAINE KIMBALL Appearances: Ms. Jenesha Bhoorasingh Simpson on behalf of the DPP for the Crown Mr. Ben Tonner of Samson and McGrath for the Defendant Before: Justice Michael Mettyear (Actg.) Heard: 17th September 2012 RULING ON NO CASE TO ANSWER SUBMISSION
This case has an interesting history which I will set out in brief.
The Defendant is the mother of three children Elijah, Emma and Sonia, who were aged at the relevant time, in March 2010, respectively, 4 years old, 2 years old and 8 months old. The children were in the care of their grandmother, Sonia Kimball, at 1 Snug Harbour. Also living at the address was the Defendant's brother, Aaron, and a domestic help called Rowena Paulo.
The Defendant did not live there. The reasons for the mother’s separation from her children are not relevant but I should record that she has claimed that she was anxious to be reunited with them as soon as was possible.
On the 9th March 2010 at about 9 p.m. Ms. Paulo saw Aaron in close proximity to Elijah. She must have thought that something suspicious was going on. When she was alone with Elijah she asked him what had happened and she received an answer. What Elijah said has not been adduced in evidence but it is obvious from what happens later that Elijah made an allegation of a sexual assault.
The evidence before me is that the next day Ms Paulo encouraged Elijah to repeat the allegation to his mother and grandmother. A report was made to the police and an investigation started.
On the 10th March 2010, Lucille Bodden, a Social Worker of the Department of Children and Family Service (DCFS), spoke to the Defendant who told her that the helper had seen Aaron with Elijah's penis in his mouth.
On the 18th March 2010 a statement was taken from the Defendant in which she said what Ms. Paulo had told her and what Elijah had said. She made it perfectly clear that she did not believe the allegation against her brother and gave reasons why. Despite this, the Crown were apparently proposing to call her as a witness in the case against Aaron.
Elijah was interviewed on the 15th March 2010 and Aaron arrested and interviewed on the 18th March.
On the 2nd July there was a pre-trial meeting attended by the Defendant, the police and counsel then representing the Crown. The Defendant indicated that she had something important to say and informed them that she had given a false report before and that she had, in effect, encouraged Elijah and Ms Paulo to falsely allege that the indecent event had occurred. She was interviewed, under caution, about this. In that interview she repeated what she had already said and, in summary, went on to say that she had done so in order to get her children back, that she was sorry for what she did, that she did not want or expect the police to be involved and that her brother was completely innocent. She added that although she had never expected things to go so far, she now realised that what she had done was wrong and that she expected to be sent to prison for it. She was arrested and in due course charged.
Aaron Kimball stood trial at the beginning of 2011. Obviously, the Crown did not call the Defendant, but the defence did. Despite her evidence, Aaron was convicted.
His appeal against conviction was heard at the end of 2011 and the appeal was allowed. I was told, simply as a matter of information that the reason was that the learned trial judge had mis-directed himself about the proper approach to evidence from a child as young as Elijah. The Crown did not seek a re-trial.
At the start of this case Ms. Simpson, for the Crown, informed me that the Crown's stance is that Aaron is guilty of the indecent assault. However, no evidence has been adduced to support that and there is no proper basis upon which I could draw such a conclusion.
The precise terms of the count on the indictment are important. The statement of offence alleges attempting to pervert the course of justice. The particulars of offence state: "Jessica Elaine Kimball, on Friday 2nd July 2010, at the Family Support Unit, Smith Road, Grand Cayman, did an act in order to pervert or defeat the course of justice, namely gave a false statement to police investigators in relation to the matter of *R v. Aaron Kimball* for indecent assault."
It is of interest to note that, in theory at least, the Crown had a number of options. It may have been possible to lay a charge relating to the Defendant’s conduct in March 2010, or it may have been possible to have charged perjury following the trial of Aaron Kimball. I am not criticising the Crown for not having pursued either course as there may have been problems in doing so, but I am emphasising that, for present purposes, my attention is focused on the date in the indictment.
Mr. Tonner, who appears for the Defendant, has wisely sat through the Crown's evidence without asking a single question.
At the end of the Crown's case he has submitted that there is no case to answer. He asserts that there is no evidence that anything in the statement of the Defendant on the 2nd July 2010 is false. He is right.
I asked Ms. Simpson to point out any fact stated on the 2nd July 2010 which the evidence called proves to be false and she was, understandably, unable to do so.
The Crown may well suspect that the Defendant told lies on the 2nd July 2010 and at Aaron's trial, but they cannot prove it; certainly not on the evidence called before me.
In the well known case of *R v. Galbraith* 73 Cr. App. R. 124 C.A. the court said: "If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty - the judge will stop the case...". That is the situation here and I allow the defence submission and direct that a verdict of not guilty be entered. Dated this the 18th September 2012 Mr. Justice Michael Mettyear (Actg.) Judge of the Grand Court