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 ru