Appeal Court settles law on no-case submissions

JUDGES who are asked to uphold no-case submissions in criminal cases will now have to apply a stricter standard in assessing the prosecution’s evidence as the Court of Appeal has overruled a law that stood for the last 40 years.

In a landmark ruling on Friday, Justices of Appeal Prakash Moosai, Mark Mohammed and Malcolm Holdip upheld an appeal of the Director of Public Prosecutions (DPP) on all four arguments raised.

The appellate judges were asked by the DPP to clarify whether judges or magistrates can uphold no-case submissions in cases where witnesses turn hostile.

Former deputy DPP George Busby, who argued the appeal in 2019, contended it should be a question for the jury to determine.

The issue was at the core of the DPP’s appeal against a judge’s decision in 2011 to uphold a no-case submission which led to a man accused of murder being acquitted.

In 2011, then Justice Andre Mon Desir upheld a no-case submission on behalf of Kurlan “Miceman” George, who was on trial for the 2006 murder of Andrew “Bellies” John.

George, allegedly a gang leader, from St Joseph, was gunned down in 2017 after being ambushed as he went to sign the bail register at the police station in the area.

In his ruling, Mon Desir said the evidence of the eyewitness –John’s common-law wife at the time – to the shooting was discredited after the witness was declared as hostile and un-co-operative.

Mohammed, who delivered the unanimous ruling, said it would be “unwise to allow a judge sitting with a jury to make a determination that a conviction would be unsafe or unsatisfactory.”

The legal precedent on no-case submissions, which up until now, after four decades, was found in the local case of Sanjit Chaitlal.

Now, the Appeal Court holds that the correct principles to be applied are those that can be found in the case of the UK case of Galbraith which sets out a two-limb test for no-case submissions.

Mohammed said the decision in Chaitlal was made "per incuriam" which, in law, means a decision was made with a lack of due regard to the law or the facts.

“The expansion of the test in Sangit Chaitlal to include a consideration as to whether the prosecution's evidence was so manifestly unreliable or so discredited as a result of cross-examination might wrongly lead a trial judge sitting with a jury to evaluate whether the witnesses were being truthful, which is within the sole ambit of the jury.”

In the case involving George, Mohammed said the prosecution’s case should have been left to the jury.

The judges were asked to consider several cases in the Commonwealth, not only England and the UK, but also Australia and Canada in arriving at the decision which now provides clarity on how no-case submissions should be treated by judges and magistrates.

For the latter, the judgment said there was no rationale to depart from the test for magistrates even if they sit without a jury and also emphasised that the same should be adopted for judge-only trials.

Judges are also now expected to apply the Galbraith test for both direct and/or circumstantial evidence to avoid encroaching on the jury’s territory as the tribunal of fact, which is where, the ruling said, the trial judge fell into error as he “usurped the function of the jury.”

“Accordingly, the case ought to have been left to the jury with the appropriate directions by the trial judge that they were to decide what, if anything, of the witness’s evidence they accepted. The failure to do so constituted a material error on the part of the trial judge.”

Mon Desir was also faulted for not allowing evidence, which was led by Busby at the trial in 2011, of the witness’s unwillingness to give evidence because she was “frighten for her life,” as a reason for her turning hostile.

A no-case submission is usually made at the close of the prosecution’s case on the basis that the evidence presented up to that time fails to prove the offence and would be insufficient to support a conviction. A successful submission results in a not-guilty verdict.

Although the DPP’s appeal was upheld, the judges agreed there could be no consideration of a new trial since George is now dead.

The judges, who were asked to provide guidance for masters in the criminal division, at sufficiency hearings, said they could not do so without arguments on the legal principles, rules of practice and procedures of these types of hearings.

At the appeal, attorneys Jagdeo Singh, Renuka Rambhajan, Vere Marie Khan, Karina Singh and Lana Lakhan advanced submissions amici curiae which is Latin for “friends of the court.”