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Retrials

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The Court of Appeal of the Eastern Caribbean States presided in SVG last week from the October 9 to 11 and one judgment given on the first day of the sitting appears to have sparked off intense discussions and recriminations. This is the case of Patrick Lovelace v the Queen in which the defendant appealed the conviction of murder of 12 year old Lokeisha Nanton.{{more}} The decision was not overturned but a retrial was ordered because of two issues. The appellate justices found that the closing speech of the DPP was unfair and that the judge failed to give a good character direction of the accused to the jury. In my effort to inform my readers on legal issues I will revisit the issue of retrial. It would however take more than one article to discuss the matter satisfactorily.

The Court system in the High Court

Those persons who are charged with a crime are tried in the High Court of Justice before a judge and a jury. The jury is the arbiter of facts and has the duty after listening to the evidence to decide whether the accused/defendant is guilty or not. The judge has conduct of the trial and must make sure that everything is done in accordance with the law. He therefore deals with all questions of law.

The Director of Public Prosecution (DPP) has the duty to examine witnesses on behalf of the crown. The lawyer for the defence has the duty to defend his client and in doing so he would cross-examine the witnesses for the crown and examine his client’s witnesses. Physical evidence is also admitted to support the case. In the end both lawyers sum up their case in a closing address to the jury. The judge also gives his summation and recounts the evidence and advises about the law in the case for the benefit of the jury.

The Appellate Courts

At the Court of Appeal level the approach is different. Lawyers argue the law on behalf of the appellant on the basis that there may have been irregularities in the trial. Their objective is to persuade the judges that the High Court judgment is unsafe and should be over turned.

The DPP argues on behalf of the Crown and his objective is to dismiss the appeal and confirm the conviction and sentence. The witnesses who gave evidence at the High Court do not have to give evidence again but the whole procedure takes place in the presence of the accused. It is the role of the three judges to examine the conduct of all the players to discover if there were any irregularities based on the grounds put forward by the appellant or his lawyer.

It does not help the lawyer or his client to openly criticize a judge for giving a judgment against his client for the law makes provision for an appeal at a higher level. The Court of Appeal decisions are not written in stone and an appeal could be made at a higher level, namely, the Judicial Council of the Privy Council. At the Privy Council level the whole case and including the reasoning of the Justices of Appeal on issues raised in the case are given consideration and the Privy Council like the Court of Appeal has the power to dismiss, allow the appeal or order a retrial.

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