Rohan Gidarisingi v The Director of Public Prosecutions
| Jurisdiction | Cayman Islands |
| Judgment Date | 20 September 2019 |
| Docket Number | CAUSE NO: 158 OF 2019 |
| Court | Grand Court (Cayman Islands) |
CAUSE NO: 158 OF 2019
LACV 123/2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
| To the Clerk of the Court, Law Courts, George Town, Grand Cayman | |
| Name, address and description of applicant(s) | Rohan Gidarisingh, HMP Northward |
| Judgment, order, decision or other proceeding in respect of which relief is sought | Decision of the DPP to refuse to disclose items seized in original investigation, sought for new investigation by defence. |
| Relief Sought
| |
| Name and address of applicant's attorneys | Samson Law Associates, 4 th Floor Harbour Center, 42 North Church Street, George Town, P.O. Box 2255, Grand Cayman KY1-1107, Cayman Islands |
| Signed  | Dated: 20 th September 2019 |
The Plaintiff, Mr Rohan Gidarisingh (“RG”), seeks leave to apply for judicial review of a decision of the Defendant, the Cayman Islands Director of Public Prosecutions (“DPP”), who on the 2 nd September 2019 refused to provide him with disclosure of certain items under its control (“the decision”). The items were seized in the course of a criminal investigation into allegations of rape, for which RG was ultimately convicted. Those items are:
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i. Bed Sheets from the scene of the incident;
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ii. A knife from the scene of the incident.
RG seeks disclosure of those items so that new lines of enquiry relevant to his criminal case — forensic testing — can be undertaken.
The most recent date of this decision was the 2 th September 2019, in response to a letter before action sent by RG to the Defendant. However, the refusal has also been made on the following dates:
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i. 25 th June 2019 — via email in response to further requests for the disclosure;
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ii. 17 th June 2019 — via email in response to further requests for the disclosure;
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iii. 4 th June 2019 — via letter in response to the first request.
This application is brought under Order 53 of the Grand Court Rules (1995 Revision). 1
RG has sufficient interest in this matter as he is the subject of the decision.
In summary, RG submits that it is sufficiently arguable 2 that:
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i. The decision was unlawful. The Defendant has a continuing duty to disclose material that might cast doubt on the safety of his conviction, unless there is a good reason to withhold it. RG wishes to forensically examine certain items. If the results of those tests are favourable to him, it will affect the safety of the conviction. There is no good reason to withhold the items from him.
RG seeks the following relief:
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i. An order of certiorari to review and quash the Defendant's decision;
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ii. An order of mandamus to compel the Defendant to disclose the items;
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iii. A declaration that the Defendant has acted unlawfully.
It is submitted that leave to apply for judicial review should be granted.
Under Order 53 — “Applications for Judicial Review” — an applicant may apply for leave for judicial review under rule 3(1). Such an application must be made promptly and in any event within three months from the date when grounds for the application arose (rule 4(1)).
The Court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates (Order 53, rule 3(7)).
Leave should be granted where the case is sufficiently arguable to merit investigation at a substantive hearing (see, e.g. R v. Ebanks, ex parte Henderson [ 2009 CILR 48] at paragraphs 10 to 11).
On the 25 th April 2017, RG was convicted of rape contrary to section 127 of the Penal Code (2013 Revision) (Count 1) and possession of a prohibited weapon (a knife) contrary to section 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.
The prosecution case can be summarised as follows: At the relevant time RG was working as a chef at the Treasure Island resort. One of RG's colleagues, Ms Karlene King (“KK”), had a daughter called Ms Donique Thompson (“DT”). DT alleged that RG raped her on the morning of the 7 th November 2014 at the Holiday Inn hotel.
On the 6 th November 2014, RG was working at the resort with KK. On that evening DT came to the resort to visit KK. DT and RG began talking. On it transpiring that it was DT's birthday, RG offered to take her out to celebrate. DT agreed and the two went out for drinks.
In the early hours of the morning of the 7 th November 2014, both RG and DT went to the Holiday Inn hotel, where RG 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 RG performed oral sex on DT as she lay on the bed. After that, penetrative vaginal sex took place.
The issue at trial was whether DT had consented to the sexual intercourse. RG contended that DT had consented. DT stated that she had not.
Of particular relevance to this application are the following matters:
First, DT claimed that she had both vomited 3 and urinated on the bed 4 during the incident. RG agreed that she had vomited on him during sex but denied that she had ever urinated. 5
The bed sheets were retained by the police but never tested for urine.
Second, DT stated that she was threatened with a collapsible knife during the rape, where RG held the blade against her neck 6 in a firm manner. 7 She also claimed that the knife was held to her side. 8 RG denied that he had threatened her with the knife at all, neither to her neck 9 or to her side. 10
The knife seized by police but was never tested for the presence of DT's DNA on the blade.
RG appealed against his conviction to the Cayman Islands Court of Appeal. 11 One of the grounds of the appeal was that the investigation had been inadequate. The criticism included allegations that the knife and the bed sheets should have been tested. The Court of Appeal stated that it was plain that the investigation had been inadequate. 12
RG's appeal was ultimately dismissed.
On the 3 rd June 2019, 13 RG wrote to the Police Commissioner. In that letter he requested, inter alia:
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i. The knife allegedly used in the course of the offending (“the knife”);
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ii. A white sheets and pillowcases (exhibits CH4 — CH10), all recovered by police from the relevant hotel room on the 7 th November 2014 (“the Bed Sheets”);
On the 4 th June 2019, 14 Ms Candia James-Malcom (the Acting Deputy DPP), replied to RG. In the letter she stated:
“All relevant material seized during the course of the investigation and in the possession of the RCIPS was disclosed to you prior to and during your trial.”
The letter stated that there was no post-trial duty requiring the prosecutor to disclose items that are merely requested for a re-investigation of the case. It concluded by refusing to disclose the items.
On the 14 th June 2019, Samson Law (instructed on RG's behalf) sent a letter to the DPP. 15 The letter reiterated the requests and took issue with the DPP's interpretation of the law of continuing disclosure.
On the 17 th June 2019 the DPP replied to Samson Law, 16 and again refused to provide the requested items. In that letter the DPP erroneously stated that the bed sheets had not been seized by police. It is now accepted by the prosecution that they were seized by PC Camille Haughton on the 7 th November 2014 and labelled exhibits CH4 — CH10.
On the 25 th June 2019, Samson Law sent a further letter to the DPP. 17 Again, issue was taken with the DPP's interpretation of the law.
On the 25 th June 2019, the DPP replied to Samson Law by email. 18 The email stated “[m]y position regarding disclosure remains the same and I do not intend to continue repeating same ad infinitum”. That email repeated the error that the bed sheets had not been seized during the investigation.
On the 25 th June 2019 Samson Law replied to the DPP. 19 The email maintained that the DPP was in error and stated that Samson Law had been asked to consider legal remedies. It stated that “simply providing Mr Gidarisingh with the knife will be a more proportionate means of resolving this issue, rather than resorting to litigation.”
On the 25 th June 2019 the DPP responded stating “[y]ou are entitled to consider whatever legal remedies you deem appropriate in the circumstances.” 20 Samson Law replied on the same day indicating that they would be in touch. 21
On the 20 th August 2019 RG made an application for civil legal aid. This was granted on the 5 th September 2019. 22
On the 26 th August 2019, Samson Law sent a letter before action to the DPP on RG's behalf. 23 This letter requested once again that the Knife and the Bed Sheets be provided.
On the 2 nd September 2019, the DPP responded by email stating that in their view no further duty of disclosure arises. 24
On the 12 th September 2019 a phone call took place between Samson Law and the DPP. During that call the DPP confirmed that it was not willing to disclose the bed sheets for the same reasons as previously stated.
In refusing to provide the requested items, the Defendant has acted unlawfully.
In the English case of Golil [2018] EWCA Crim 140, 25 the Court of Appeal (Criminal Division) stated, in...
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