The State v Guy Ramrekha

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Hayden A. St. Clair-Douglas
• Judgment Date: 22 April 2024
• Neutral Citation: TT 2024 HC 112
• Docket Number: CR No. T0032 of 2015
• Court: High Court (Trinidad and Tobago)

Between

The State

and

Guy Ramrekha

Before

the Honourable Mr. Justice Hayden A. St. Clair-Douglas

CR No. T0032 of 2015

IN THE HIGH COURT OF JUSTICE

PORT OF SPAIN

Appearances:

Mrs. Maria Lyons-Edwards and Mr. Ronnie Leon Bassant appeared for The State

Mr. Yves Nicholson appeared for Guy Ramrekha.

Ruling on submission of no case to answer

1 Guy Ramreka is on trial at the criminal assizes on an indictment that alleges serious indecency, as count 1, and kidnapping, as count 2. This is a ruling in respect of a submission, made on behalf of the accused at the close of the case for the prosecution, that he has no case to answer.

2 This trial is being conducted before me without a jury. My responsibility relates to issues of law, but I am also the arbiter of the facts. Because this is a submission of no case to answer, the question to be decided is one of law only; it is unnecessary and inappropriate for me to make any findings of fact. I must decide whether there is evidence that is not inherently incredible, which, if it were to be accepted as truthful and accurate, would establish the essential elements of the offences charged in the indictment. Although I am not required to make any findings of fact, I must, for the purposes of ruling on a submission of no case, take the prosecution's case at its highest.

3 Serious indecency is defined by the Sexual Offences Act as an act, other than sexual intercourse, involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.

4 The offence of kidnapping consists of the taking or carrying away of one person by another by force or fraud, without the consent of that person and without lawful excuse. On a charge of kidnapping, the prosecution do not have to prove that the kidnapper carried the victim to the place he intended; the prosecution only needs to prove a deprivation of liberty and carrying away from the place where the victim wished to be.

The prosecution's case.

5 The victim gave evidence that on Sunday, May 9, 2010, she was at her home at Top Road, Pembroke, Tobago. At around 1:30 p.m., the victim left her home, crossed the road, and went and sat down outside a wooden building that was across from her house. The victim was 10 years old in May 2010. There was a disused car seat on the ground at the side of the wooden building. The victim sat down on the car seat. A person known as “Tall Man”, or “Parker”, worked at the wooden building. He was in the building when the victim came and sat down on the car seat.

6 The victim testified that while she was sitting on the car seat she saw an Indian man walking toward her. She had not known that man before. That man came and sat next to her on the car seat. He had a black plastic bag in his hand. She said that the man offered her 4 dollars which she refused; the man pushed the bills into her pocket. She testified that Tall Man pushed his head through a window of the wooden building while she and the Indian man were seated on the car seat. Tall Man told her to go home.

7 The victim went home but she did not remain there; she went back over to the wooden building. When she went back to the wooden building the Indian man was still there. The Indian man asked her to come with him and he grabbed her by the arm and dragged her into a cocoa field where he put her to lay down on some dried cocoa leaves. He asked the victim to take off her clothes and when she refused he attempted to take down her pants and underwear. The victim testified that the man then began poking (she said “chooking”) her vagina with his finger. He then lifted her up and spread some newspaper on the ground. He put her to lie down on the newspaper.

8 The victim testified that Tall Man again pushed his head out of a window of the wooden building and loudly enquired what was happening. This caused the man to pick up the black plastic bag and run off. The victim said that she then pulled up her clothes and went home. Tall Man subsequently went to the victim's home and informed her father what had taken place. The victim's father took her to the police station where a report was made.

9 Kerry Job gave evidence in the case for the prosecution. Job testified that around 1:45 p.m. on May 9, 2010 he was by “Joshua” – who lived on Cardiff Road. He and Joshua were “making a cook”. Joshua went to the pipe to wash some chicken. Job saw an Indian man coming along Cardiff Road with the victim. Job testified that the man's hand was around the victim's neck. He saw them walking along the road then he saw them turn off into the cocoa.

10 Job testified that he and Joshua then entered the cocoa. At first he did not see the man and the victim; this was because they were on the other side of an immortelle tree that had been obscuring his view. When he got to the other side of the immortelle tree he saw that the man had spread some newspapers on the ground. Job testified that the victim's pants was unbuttoned and her zip was down. He testified that he asked the victim what had happened and she made a complaint to him of sexual assault by the man.

11 Job testified that he told Joshua to go and get a piece of wood; when he did so he was trying to hold the man – who was trying to escape. The man eventually got away and ran out of Cardiff Road. Job testified that he eventually went to the victim's home and told her father what had happened. Job eventually gave a statement to the police.

12 The evidence disclosed that the victim and Kerry Job attended identification parades where each of them pointed out the accused. The issue that is at the heart of this submission of no case has to do with the conduct of those identification parades.

The submission.

13 The victim described the man who came up to her as a tall, brown-skinned, Indian man who had a beard. Kerry Job did not give a description of the man; he testified that he had known the man before May 9, 2010. Under cross-examination, both the victim and Job confirmed that they had pointed out the man with the beard at the identification parade. Both the victim and Job confirmed that the accused was the only man on the lineup of the identification parade who had a beard.

14 The Identification Parade had been conducted by Hugh Jack, who, in May 2010, was an acting Inspector of Police. Under cross-examination, Mr. Jack was asked whether the person who had been pointed out by the witnesses was the only person who had a beard. He stated that all the persons on the parade had beards.

15 Counsel for the accused has submitted that because the accused was the only person who had a beard among the persons who formed the parade, he would have stood out. Counsel contends that the evidence in the prosecution's case is manifestly unreliable – because of the fact that the accused stood out at the identification parade. Counsel submitted that the identification evidence is poor because of the manner in which the identification parade was conducted.

16 The Judges' Rules for Identification Parades provide that the members of the parade should as far as possible resemble the suspect in terms of race, colour, age, height and general appearance. 1 The objective of this requirement is to test the witness's ability to discern, and then point out the suspect from among other persons, all of whom resemble in terms of physical characteristics.

17 The contention that has been made in the submission on behalf of the accused is that he stood out on the parade, especially for the victim, who had described her assailant by reference to his beard. The question whether the accused stood out is connected with, and follows from, the factual finding of the physical features of the participants of the identification parade. The question whether the accused stood out is, equally, a question of fact. These factual issues will not be determined at this stage of a submission of no case to answer.

18 The state of the evidence is that two witnesses who attended the parade testified that the accused was the only member of the parade who had a beard; however, the police officer who was responsible for the composition of the parade testified that all the members had beards. If the accused was the only participant who had a beard, he would undoubtedly have stood out.

19 Because this is a submission of no case to answer, I must determine whether evidence has been presented in the case for the prosecution which, if accepted, is capable of establishing the elements of the offences charged. To the extent that there is a factual divergence on the evidence that has been presented, I am not required to resolve that issue at this time. I must proceed on the assumption that inferences most favourable to the prosecution, which are reasonably open, will be drawn. Although there are two sets of witnesses, both of whom testified to the same identification parade, whose testimonies differ as to an aspect of the physical characteristics of the participants, it is not for me, at this stage to decide whom I believe.

20 If it were eventually to be determined, upon an examination of the totality of the evidence, that the accused did not stand out among the participants of the parade by virtue of his beard, there would be no issue to be discussed. For purposes of ruling on the submission that has been made on behalf of the accused, I will proceed to examine the law on the assumption that it has been found as a fact that the accused was the only participant on the parade who had a beard, and that the parade was, for that reason, unfairly conducted. Does this unfair parade mean that this trial ought not to proceed? Does this unfair parade mean that a submission of no case, founded on the proposition that the prosecution's evidence is of a tenuous character and is manifestly unreliable, should succeed?

The law: submission of no case to answer and identification evidence.

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