Gidarisingh v Director of Public Prosecutions
| Jurisdiction | Cayman Islands |
| Judge | McMillan, J. |
| Judgment Date | 09 December 2020 |
| Court | Grand Court (Cayman Islands) |
(McMillan, J.)
GRAND CT.
Criminal Procedure — prosecution case — disclosure to defence — duty of disclosure post-trial only where new material comes to light which may cast doubt on safety of conviction
Held, dismissing the application:
(1) There was a powerful interest in finality of proceedings. In cases of this nature, all concerned had a legitimate interest in knowing that the legal process was at an end, unless there were demonstrated to be good reason for reopening it. Under Cayman law, convicted persons did not have a continuing right to indefinite reinvestigation of their cases. A duty of disclosure would arise post-trial only in circumstances where new material had come to light which might cast doubt on the safety of a conviction (paras. 65–75).
(2) Throughout the trial, the requested items had been fully available to the applicant and his counsel. The knife had been exhibited. There was no obstacle in law or fact in the defence causing the bedding and the complainant's clothes to be formally exhibited had the defence so wished. The defence was aware of their existence and availability. Up to the time of the appeal, forensic testing could likewise have been pursued. Counsel clearly chose not to exercise that option. The manner in which the defence was conducted was a matter for counsel and not the court. The burden to disclose had been discharged. The applicant had not wanted the items at the proper time or in the proper manner. In refusing further to disclose the items to the applicant after the trial, the defendant had not acted unreasonably, unfairly or unlawfully (paras. 84–100).
(1) Euro Bank Corp., In re, 2002 CILR 15, considered.
(2) McDonald v. H.M. Advocate, [2008] UKPC 46; 2008 SLT 993; 2008 SCL 1378; [2009] HRLR 3; [2009] UKHRR 46, considered.
(3) R. (Nunn) v. Chief Constable of Suffolk Constabulary, [2014] UKSC 37; [2015] A.C. 225; [2014] 3 W.L.R. 77; [2014] 4 All E.R. 21; [2015] Crim. L.R. 76; [2014] 2 Cr. App. R. 22, considered.
The applicant applied for judicial review.
The applicant had been convicted in the Grand Court of rape and possession of a prohibited weapon. He was sentenced to 13 years' imprisonment.
The complainant claimed that she had been intoxicated and had consented to oral sex with the applicant but not to the penetrative vaginal sex which followed. She claimed that the applicant had threatened her with a knife, which he had held against her body and used to cut her clothing, and that she had vomited and urinated on the bed during the incident. The applicant claimed the complainant had consented to sexual intercourse. He denied threatening her with a knife or using a knife to cut her clothing. He agreed that she had vomited during the incident but denied that she had urinated.
The knife had been seized by police but had not been tested for the presence of the complainant's DNA. The complainant's clothing and the bedding had also been seized. The bedding had not been tested for the presence of the complainant's urine.
The applicant sought to appeal. The Court of Appeal stated that the investigation had been inadequate but dismissed the application for leave to appeal. At trial, and in his application for leave to appeal, the applicant had been represented by competent and experienced counsel.
The applicant wrote to the Police Commissioner requesting the knife allegedly used in the offending, the bedding recovered by the police and the complainant's clothing which had allegedly been cut during the incident. The acting Deputy D.P.P. replied that all relevant material seized during the investigation had been disclosed to the applicant prior to and during the trial. She claimed there was no post-trial duty on the prosecutor to disclose items that were requested for a re-investigation of the case.
The applicant was granted leave to apply for judicial review in respect of the decisions to refuse to disclose the items. The applicant submitted that the defendant's decision to refuse disclosure of the items was an error of law. Even after the conclusion of criminal proceedings, there was a broad and overreaching duty of disclosure. The defendant submitted that the only form of disclosure applicable and relevant after the conclusion of criminal proceedings was where material subsequently came to light which might cast doubt on the safety of a conviction. It was submitted that the applicant's counsel had access to the bedding prior to the trial, he knew that the knife had been recovered and the applicant's counsel inspected the complainant's clothing during the course of the trial.
R. Wheeler for the applicant;
M. Brandt for the defendant.
1 McMillan, J.:
This matter concerns an application for judicial review on behalf of Rohan Gidarisingh (“the applicant”) against the Director of Public Prosecutions (“the defendant”) as thus described.
2 The relief sought is as follows:
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“1. An order of certiorari to review and quash the Defendant's decisions to refuse to disclose to the Claimant items it holds in the context of historic criminal proceedings against RG, namely Bed Sheets, a Knife, and Clothing (‘the items’);
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“2. An order of mandamus compelling the Defendant to disclose the items to the Claimant forthwith;
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“3. A declaration that the Defendant has acted unlawfully in refusing to disclose the items;
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“4. Such further or other relief as this Honourable Court shall deem appropriate;
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“5. All necessary and consequential directions.”
3 The notice of motion consolidates two claims for judicial review, namely Causes 158 of 2019 and 111 of 2020. Leave has been granted in both matters. On August 26th, 2020, this court ordered that a consolidated notice of motion be prepared and that the matters be heard together.
4 Mr. Rohan Gidarisingh applies for judicial review of decisions of the defendant, the Cayman Islands Director of Public Prosecutions (“D.P.P.”), namely the refusal to provide him with disclosure of certain items under his control (“the decisions”). The items were seized in the course of a criminal investigation into allegations of rape, for which the applicant was ultimately convicted on April 25th, 2017.
5 The dates of the challenged decisions and the items are, respectively:
(i) September 2nd, 2019—bed sheets and a knife involved in the incident (Cause No. 158 of 2019);
(ii) February 20th, 2020—clothing worn by the complainant DT during the incident (Cause No. 111 of 2020).
6 The applicant seeks disclosure of those items so that—
“new lines of enquiry relevant to his criminal appeal—forensic testing—can be undertaken. This is with a view to seeking to admit fresh evidence in an appeal against conviction under section 16(b) of the Court of Appeal Law (2011 Revision),”
as set out in para. 4 of the introduction to the motion.
7 The application is brought under O.53 of the Grand Court Rules (1995 Revision).
8 In summary, the applicant submits that when making the decisions the defendant fell into error of law by misinterpreting the common law duties of the prosecution in regards to post-conviction disclosure. In error of law the defendant is alleged to have interpreted the common law in an overly restrictive manner by relying solely on the United Kingdom Supreme Court (“UKSC”) case of R. (Nunn) v. Chief Constable of Suffolk Constabulary (3) and failing to have regard to (i) the ruling of the Chief Justice of the Cayman Islands in In re Euro Bank Corp. (1), and (ii) the ruling of the Privy Council in McDonald v. H.M. Advocate (2).
9 He submits that the common law of the Cayman Islands imposes a wide and continuing duty to disclose material that might cast doubt on the safety of his conviction, unless there is a good reason to withhold it. The applicant wishes forensically to examine the items. If the results of those tests are favourable to him, he argues that it will affect the safety of the conviction and that there is no good reason to withhold the items from him.
10 The applicant submits therefore that the defendant acted in error of law when making the decisions, and asks the court to quash the decisions and to compel the defendant to provide the items to him.
11 On April 25th, 2017, the applicant was convicted of rape, contrary to s.127 of the Penal Code (2013 Revision) (Count 1) and possession of a prohibited weapon (a knife) contrary to s.79 of the Penal Code (2013 Revision) (Count 2). This was following a trial before Swift, J. and a jury. He was sentenced to 13 years' imprisonment.
12 The prosecution case can be summarized as follows: at the relevant time he was working as a chef at the Treasure Island resort. One of his colleagues, KK, had a daughter DT. DT alleged that the applicant raped her on the morning of November 7th, 2014 at the Holiday Inn hotel.
13 On November 6th, 2014, he was working at the resort with KK. On that evening, DT came to the resort to visit KK. DT and the applicant began talking. On it transpiring that it was DT's birthday, the applicant offered to take her out to celebrate. DT agreed and the two went out for drinks.
14 In the early hours of the morning of November 7th, 2014, both the applicant and DT went to the Holiday Inn hotel, where the applicant booked a room. DT described in evidence that she had felt intoxicated and tired, and they had both gone to the room. Whilst in the hotel it was agreed between the parties that the applicant performed oral sex on DT as she lay on the bed. After that, penetrative vaginal sex took place.
15 The issue at trial was whether DT had consented to the sexual intercourse. The applicant contended that DT had consented. DT stated that she had not.
16 Of relevance to this application are the following matters:
17 First, DT claimed that she had both vomited and urinated on the bed during the incident. The applicant agreed that she had vomited on him during sex but denied that...
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