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 dir
