THE Court of Appeal has been asked to rule on a novel argument relating to convictions under the murder-felony rule which, if successful, could result in hundreds of cases having to be brought back to the courts for sentencing.
Nigel Charles and Marlon Hope, who were convicted of murder-felony for the 2006 killing of burger cart owner Harry Chatoor, are asking court to overturn their convictions and 14-year, 11-month sentence.
Murder-felony is categorised as a violent arrestable offence and applies when someone commits a certain kind of felony and someone else dies in the course of it.
It is Charles and Hope’s contention that felony-murder, which does not carry the automatic death sentence, was distinct from common law murder, which does.
On Thursday, defence attorney Jagdeo Singh, on behalf of both men, argued before Justices of Appeal Alice Yorke-Soo Hon, Mark Mohammed and Malcolm Holdip, that the two suffered a grave miscarriage of justice because the trial judge directed the jury on the murder-felony rule which was not open to him to do so.
Singh also submitted that the law did not provide for a sentence for murder-felony offences.
He said the law that created the new statutory offence would have to be amended by Parliament to include it as an alternative to the offence of murder, much in the way it does unlawful killing – manslaughter.
“There is no penalty prescribed by law for the offence of felony murder…The alternative offence (of murder-felony) must fit squarely within the statute,” Singh insisted as he urged the court to quash the men’s convictions and substitute it with one of manslaughter.
Singh said if the appellants’ arguments were correct, then the court could be left with a conundrum where the offence of murder-felony was on the law books but there was no penalty for it.
He said Parliament would have to amend section 2 (A) of the Criminal Law Act, which created the murder-felony offence.
“If the court rules in our favour, it will render 2 (A) inoperable…Where Parliament creates a statutory offence, then Parliament must prescribe a sentence. The Judiciary cannot impose a sentence where Parliament is silent. The court will be crossing the line and setting a regime of sentences for an offence.”
This, he admitted, would result in past convictions and sentences for murder-felony having to be quashed and each case examined on its own merits to determine if manslaughter could be substituted.
Urging the judges not to find favour with the appellants’ arguments, was special prosecutor Travers Sinanan who said there was no ambiguity in the law.
“He is attempting to ask you to go against established practice over a number of years. Any legislation to be enacted or changed must come from Parliament
“Where is the wrong turn? The literal rule is, on the face of the legislation, a person can be found guilty of manslaughter, or any offence which may be found under a written law if they are not found guilty of murder.”
Sinanan maintained that the court was not empowered to substitute the verdicts.
“Felony murder is the lesser of two offences. We have to be careful because it is a dangerous road and we would be opening up the floodgates.”
He warned the court could find itself inundated with applications for substitutions of verdicts.
“This should not be interfered with. It should not be entertained.”
He also questioned if the appellants are also contending that the previous decisions on murder-felony pronounced by the Privy Council, which binds the Court of Appeal, was bad law.
Charles and Hope were jailed in 2019 by Justice Hayden St Clair-Douglas. Chatoor and his family were asleep at their home at Jordan Hill, Princes Town, on July 7, 2006, and Charles and Hope robbed them of jewellery, electronics and money.
Chatoor, a pensioner, was shot and died three weeks later at hospital.
The judges have reserved their decision.