Rohan Gidarisingh v R

¶ <doc> BETWEEN: IN THE CAYMAN ISLANDS COURT OF APPEAL CRIMINAL ROHAN GIDARISINGH -and- L AL APPEAL 14/2017 IND.0101/2014 SC#06083/2014 Appellant BEFORE: Date of Hearing: Appearances: HER MAJESTY THE QUEEN The Rt. Hon Sir John Goldring, President The Rt. Hon Sir Bernard Rix, Justice of Appeal The Rt. Hon Sir Alan Moses, Justice of Appeal Wednesday, 14 November 2018 Mr. John Furniss for the Appellant Ms. Candia James for the DPP for the Respondent Respondent Tran- MOSES, J.A.:

¶ [1] This applica- prohibited wit- 19th and the subject matter. Criminal Appeal 14 of2 JUDGMENT Script of oral judgment dated 14 November 2018 App Release 22 January 2019 It was convicted of rape following a trial by jury rapon. It is of significance to point out that the trial to 25th of April 2017 - two and-a-half years after the ever of the allegations. Rohan Gidarisingh v The Queen - Final proved and possession of a lock place between the nts of which were the Page 1 of4 </doc>
<doc> 2. The applicant alleged to complainant complainant eyewitness party" at the receptionist, and they were her boyfriend. It had met the complainant for the first time on the night have taken place on 6 November 2014. He had, s mother in the past. At his suggestion, but with s mother, they had been out for a number of drinks that by the time he took her to what he said was go Holiday Inn she was drunk. She was seen by witnesses to drink. The applicant took a room giving his or it up to the room where, at some stage, she, in hcr into in Jamaica. ht when the rape was however, known the the consent of the and it was plain from oing to be a "private nesses, including the witness and address vication, sent a text to

¶ [3] The complainant her underwear, a knife, pres-

¶ [4] At one stage finished, atti- the reception to seek help.

¶ [5] When the po- was a flick le cut a small li- whether that mant said that he first of all told her that he wanted or- thing, tried to insert his penis but when she sought to do it against her neck and then penetrated her for a sec- she was sick over him and at another, so she said, t though he said he did not ejaculate, she went downsta- list and at one point hid amongst the bushes, sending a She was seen by the hotel desk manager to be in a distr- lice arrived, it was plain that the applicant sought to tint away but it was found. The applicant said that he role in her tightts but the clothing was not produced and was correct or not. real sex, then removed light him off, produced and time. irritated. When he had rs and complained to message to her mother essed state. now the knife, which had used the knife to I nobody could judge

¶ [6] The first gro- proper invasi- that proper in- as the invest- her state and have taken p-

¶ [7] There were the complain- Criminal Appeal 14 of 2 und of the appeal which he has sought to bring rela- tion of material that plainly would have been avail- desigation taken place. It was alleged that there could gating officer's notebook revealed, further videos, whi- movements and of the applicant before and after the lace. admissions that the knife that was produced did not con- tain'ts underwear but, says the applicant, it was not te- OJ Man Gidarisingh v The Queen - Final ttes to the absence of able for the jury had have been produced, which would have shown e rape was alleged to maintain any fibres from ted to see whether it Page 2 of 4 </doc>
<doc> was free or knife was p- was not kno-

¶ [8] The telepho- said that si- investigating

¶ [9] It is, in our that that is o- not from the complainant's DNA, having regard to essed against her neck nor was the bed clothing exa- yn whether there were signs of urine or not. ves were not interrogated so as to see the content of the sent. All of this, in the context of a very deli- of that had left the service and was no longer on the is- udement, plain that there was inadequate investigation. "No avail to the applicant unless it can be said that a fol- he allegation that the mined and therefore it e messages that it was yed trial, where the land- but it is equally plain ir trial of the issues in this case wa- 2001 I All, contained no Crown or w- only comme- favour of the "I dir- are l- any r-

¶ [10] In fact, of c- for the defe- otherwise be- for that is not possible. (see R on behalf of Ebrahim v Felth, R 831) The judge warned the jury not to speculate as to those items that should have been further investigated or would have helped the applicant. In that direction he w- ant that his further direction was not, in our view, se- defence. He said to the jury: cif you that such failures by the police and holes in the f1f behind by those failures must not weigh against the way." but the absence of evidence was an argument that is undermining the absence of any evidence available to support the Crown and thus putting it in Magistrates Court to whether what was would have helped the as correct. We would efficiently forceful in evidence that defendant in we are effectively proper- ence that might have to stark highlight the importance of drunken state, misdirected circumstances.

¶ [11] The other gr- cross-exami- sex with oth- it suited him to have his Criminal Appeal 14 of 2 evidence disputed upon the complainant's side. However, that direction was not, in our view, any- as to cast doubt upon the safety or the verdic- as it does not, in our judgment, afford any distinct group bound on which it is sought to rely relates to the fact that ation of the applicant, it was put to him that he was or women when he was married and what was more, w- That has to be put in the context that the defence so- interview put before the jury to show that he had be- Ultra v Van Gidarisingh v The Queen - Final gone to that room in a thing like a sufficient of the jury. In those rit of appeal. it during the course of man willing to have could lie about it when ght, and successfully, en in the past to the Page 3 of 4 </doc>
<doc> Holiday Inn fact that he complained mind when that it went character, w jury against view of such

¶ [12] In those cir- cumstances, it is said that it fell within the charac- ter with their consent. The tice where he took the e been what he had in half of the applicant, to paint him as a bad site the feelings of the judge who taken a poor of inadmissible bad character ev- it arguably legitimate lib- been admitt- complainant this applican- those circum-

¶ [13] In our judg- this applicat-

¶ [14] There was sensibly this defence with no basis for putting it forward. We do not it was not put forward as bad character evidence. It is for the Crown to pursue, having regard to the fact and to show the motives of this defendant when he to the Holiday Inn. What is more, the judge properly its good character and that was a significant matter to stances, we reject that second ground of appeal. ent, neither ground is properly arguable and in those con- on an application for leave to appeal against the senten- ground has been accepted not to be arguable. There gree and do not think as, as we have said, a that the interview had he took this young directed the jury as to veigh in his favour. In circumstances we reject , ace of 13 years. But were clear guidelines given in this point for a degradation application wholly just s Criminal Appeal 14 of 2 Island. (See Dilbert v Samuels 2010, T CILR to as to tape of this kind.) It was plainly aggravated by the use of this victim. In those circumstances, we need no if permission to appeal the 13 years which, in any eye sentence. For those reasons, we would dismiss this app- The appropriate starting of the knife and the deal further with the life in our view, was a cation. Page 4 of 4 </doc>