Appeal Court orders retrial for Tobago man on 2012 rape charge

TRIAL judges have been urged to use all the resources available to them when they are asked to withdraw a case from a jury on a no-case submission, to ensure there is clarity on the law.

The advice came from three Court of Appeal judges on March 7. They were asked to scrutinise the no-case submission upheld by a judge in a rape case in 2020, in an appeal filed by the Office of the Director of Public Prosecutions (DPP).

The Public Defenders Department (PDD) conceded there were merits in the ground of appeal although Chief Public Defender Hasine Shaikh argued against a retrial being ordered for the 63-year-old Tobago pensioner.

In an oral ruling, Justices of Appeal Alice Yorke-Soo Hon, Gillian Lucky and Carla Brown-Antoine gave an oral decision in which they held the trial judge erred by upholding the defence’s no-case submission.

On March 4, 2020, the judge upheld the submission in favour of a man who was on trial before her on a charge involving the alleged rape of a 15-year-old in 2012.

The man’s attorney had advanced a no-case submission urging the court to intervene and withdraw the case from the jury on the ground that the prosecution had not established a prima-facie case when it closed its case.

In her ruling, the judge held there were extensive contradictions and inconsistencies in the prosecution’s evidence from at least three witnesses, which, taken at its highest, would not allow a jury to convict the accused.

“In truth, I have never seen such a case before, where there is hardly a morsel of evidential support between witnesses...

“It is manifestly unreliable. Acting purely from the expected ‘inherent sense of justice in the conduct of a trial so as to avoid a perverse verdict'…I uphold the no-case submission made of his behalf. It is my duty to withdraw the case for him from the jury.”

The State appealed the ruling.

On Thursday, Brown-Antoine, who delivered the unanimous oral decision, said the judge erred by applying the wrong test on no-case submissions, although one of the cases she used set the principles for trial judges to consider when asked to withdraw a case from a jury.

Since then, the Court of Appeal has settled the principles that trial judges must consider when assessing the evidence in a case, which now call on them to apply a stricter standard. In that ruling, the Appeal Court overruled the legal precedent on no-case submissions that had stood for the last 40 years, and said the two-limb test set out in a UK case contained the correct principles a judge should apply.

Brown-Antoine admitted that the guidance given in 2023 could not be applied retroactively, and the judge had considered the UK case in her assessment of the quality of the evidence.

“The judge was not bereft of guidance on a no-case submission as there were several cases decided by the Court of Appeal which applied the correct test.”

Brown-Antoine said it was not clear which test the trial judge considered in the rape case, since she “moved from one approach to the next.”

“Her analysis of the ruling (of the UK case) was wrong, It appears she was confused on how to approach the no-case submission.”

As they assessed the quality of the evidence, the judges held although there were inconsistencies in the evidence, there was little that contradicted the victim’s and even if there were inconsistencies, “It did not mean the case should have been withdrawn from the jury.

“It is for a jury to resolve the contradiction of the evidence and assess the credibility of the witnesses.”

They also advised judges that the prosecution’s case on direct or circumstantial evidence should be taken at its highest and they should act on the assumption that the primary facts are accurate when assessing the quality of the evidence, so they that they do not encroach on the responsibility of the jury as judges of the facts.

In the rape case, the Appeal Court held that the trial judge did encroach on the jury’s domain.

“She erred and had she applied the correct test she would not have fallen into error,” Brown-Antoine ruled.

In considering a retrial, the judges considered submissions from deputy DPP Sabrina Dougdeen-Jaglal that the victim in the case was willing to testify again, and that any delay in the case was mostly at the preliminary-inquiry stage, since the accused was committed in 2016 and an indictment filed the next year.

They also considered Shaikh’s submissions on the age of the accused and his ill health.

However, the judges agreed with Dougdeen-Jaglal that a fresh trial should be ordered “in the interest of justice.”

They ordered the registrar to expedite the matter and have it immediately docketed to a judge in the criminal division of the High Court, who should have it readied by no later than April 30 and set for trial.

The accused, who was in the court for the ruling, was granted $50,000 bail with his daughter as surety. His condition for bail is that he makes no contact with the victim or any of the witnesses in the case either directly or indirectly.

The PDD was also represented by public defender Aixa Edwards.