THE COURT of Appeal has reserved its decision in what has been described as a landmark case in which the Office of the Director of Public Prosecutions (DPP) is asking it to clarify whether judges or magistrates can uphold no-case submissions in cases where witnesses turn hostile.

The prosecution says it is for the jury to decide on the credibility of the evidence.

The issue is at the core of an appeal filed by the DPP's office 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, a judge 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 register at the police station in the area.

In his ruling, the judge said the evidence of the eyewitness to the shooting was discredited after being declared as hostile.

Deputy DPP George Busby, at a case management session in 2019, said the issue was a 'vexing' question for prosecutors, as every day they face defence attorneys who want judges and magistrates to have the leeway to stop cases on a no-case submission.

The appeal is being heard by Justices Prakash Moosai, Mark Mohammed, and Malcolm Holdip.

In his submissions on Thursday, Busby said it was the State's position while it was common ground that once there was no evidence, a judge had an overriding duty to stop the case, this was very limited and only where evidence of a witness was inherently contradictory and implausible. He said the issue of inconsistent testimony of a witness was for the jury to decide.

'A judge must avoid trespassing on the territory of the jury.'

He said where there was evidence of a criminal act and the presence of the guilty mind, no matter how vague it was, it was for the tribunal of fact, or jury, to consider and not for a judge to stop a case if they view it as unsafe or that on which no jury could properly convict.

'Where there is direct evidence of actus reus (criminal act) there is a case to consider unless the evidence is so incredible that it amounts to no evidence.'

He said in cases mounted on circumstantial evidence where the jury will be asked to rely on inferences, the assessment of facts was for the jury and not for a judge.

'Of course the judge must assess the evidence to determine if it is tenuous, but where there is evidence, the judge has no business stopping the case. A judge is a judge of law and the jury is the judge of the facts.'

He said in the event a jury makes an error, the Court of Appeal's supervisory role will kick in.

Busby admitted that no judge would want to hear that they had no power to stop a case, saying what the appellate court was being asked to provide guidance on was 'revolutionary.'

He urged the judges to pay special attention to the concept of a hostile witness and how their evidence was to be handled, saying the law has since changed drastically over the last