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Retrial 2

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A retrial takes place when a case in the High Court ends in a mistrial, for example, where there is a ‘hung jury’, that is, the jury is unable to reach a majority verdict (at least seven against two) in a non-capital offence or where it fails to reach a unanimous verdict (all agreeing on the guilt) in a capital offence (murder, genocide and treason) or where there is some sort of misconduct or irregularity. A retrial is normally fixed for the next assizes with a new jury. {{more}}

Where there is an appeal against conviction, the Court of Appeal or the Privy Council may order a retrial if the conduct of the case in the trial was not in accordance with the law. The appellate court will consider what the High Court judge allowed or disallowed and especially his/her summation (summing up) of the case and the conduct of other players. It is therefore important for the High court judge to make sure that the accused is given a fair trial.

Section 8(1) of the constitution of St Vincent and the Grenadines provides for the right to a fair hearing within a reasonable time by an independent and impartial court established by law. If the conduct of the case was not within the bounds of the law and the defendant’s right to a fair hearing was violated then the appeal will be allowed, conviction quashed and a retrial may be ordered in the interest of justice. In a well-known case, namely Newton Spence v The Queen in St Vincent and the Grenadines, the Court of appeal allowed the appeal, quashed the conviction and ordered a retrial because of the misconduct of the foreman of the jury.

The ultimate consideration in deciding whether there should be a trial is whether the interest of justice will be met. Section 40 (2) of the Eastern Caribbean Supreme Court Act, Chapter 18 of the Laws of St Vincent and the Grenadines (Revised Edition, 1990) provides for a new trial.

The decision to order a retrial is by no means a simple task. Justice Satrohan Singh in the case of Newton Spence v The Queen (Criminal Appeal No. 20 of 1998) regarded the procedure as a ‘balancing exercise’. In that case the justices of the Court of Appeal had to consider whether the accused should be subjected to a third trial, the Privy Council having quashed the conviction on the grounds that a jury of eleven instead of twelve convicted the accused.

The justices of appeal must consider the factors in favor and against the appellant and decide whether a retrial will be a misuse of the process of the court. In addition, the interest of the public in the country must be taken into consideration. That interest is for persons who have committed grave crimes to be brought to justice and not be allowed to go free because of the technical blunder of a judge or some irregularity in the conduct of the case. A retrial may not be ordered because there was insufficient evidence to justify conviction. It may not be ordered to give the prosecution a chance to “cure deficiencies” in the evidence.

Certain principles such as the seriousness of the offence, the prevalence of the crime, the expense and length of time involved in a fresh hearing are considered. The public interest however must not be achieved at the expense of the fundamental rights of the individual. The peculiar circumstances of the defendant who may have to undergo a second trial through no fault of his own must also be taken into account. Such factors as the length of time that would have elapsed between the offence and the new trial and the ability of witnesses to recall information are considered. A ‘balancing exercise’ must indeed take place and a decision for retrial is given in the interest of justice.

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