Perez faces new trial for murder

Crown wins appeal against judge’s verdict

Josue Carillo Perez was taken into
custody on Monday evening after the Cayman Islands Court of Appeal ordered a
new trial on the charge that Mr. Perez murdered Martin Gareau in May 2008.

The court allowed the Crown‘s
appeal against the not guilty verdict handed down by Justice Roy Anderson on 13
October 2009. Mr. Perez had elected to be tried by judge alone

Court president Sir John Chadwick
ordered that Mr. Perez be produced to a Grand Court the next day (Tuesday) so the
question of bail could be considered. Having allowed the appeal, Sir John said
the new trial should be held as soon as possible.

Senior Crown Counsel Trevor Ward
had asked for the remand on the basis that Mr. Perez, a Honduran national, was
a flight risk.

Attorney Anthony Akiwumi, who successfully
defended Perez in Grand Court
last September-October, argued against custody. He pointed out that Mr. Perez
had known since November that the Crown was appealing, but he had not left
Cayman. Moreover, his attendance in court on Monday for the appeal had been
purely voluntary.

The body of Mr. Gareau, a Canadian
national working in Cayman, was found at his home in Beach Bay
on the morning of Tuesday, 20 May 2008, following the long holiday weekend. One
of the issues in the trial was the exact time of his death.

The Crown’s appeal was argued by
David Perry QC, assisted by Mr. Ward.

Mr. Akiwumi responded on behalf of
Mr. Perez.

One ground of appeal was that the
judge had misdirected himself as to the standard of proof in cases of murder –
he had noted at one point “…and certainly the standard is enhanced when the
charge is one of murder.”

Mr. Akiwumi referred to four places
in the judgment where the judge talked about the standard of proof in terms
such as “beyond reasonable doubt” and “It is for the prosecution to prove guilt
so I can be sure that this accused committed this crime.”

He suggested that the judge was
simply being extremely careful in saying “enhanced standard” because the case involved
circumstantial evidence rather than direct evidence.

Mr. Perry’s next ground of appeal
was that the judge had permitted himself to engage in speculative theory in
regard to the circumstances surrounding the murder for which there was no
evidential foundation.

He said the judge had raised the
possibility of the accused acting in
concert with someone else. But no one had suggested the possibility of another person
being there as the assailant. “If it had been raised, the Crown would have dealt
with it,” he said.

Mr. Akiwumi told the court that DNA
evidence was not mentioned in Justice Anderson’s written ruling. He said Mr.
Perez’ DNA had not been found at the scene; other DNA profiles had been found,
but nothing was done to identify them.

Sir John replied that the Court of
Appeal was not re-trying the case on facts. “We are not denying the judge could
have reached the conclusion he did,” the president said.

As an example, he suggested the
trial judge could have said he was troubled by the evidence regarding rigor
mortis and DNA and those doubts led him to the not guilty verdict.

Mr. Akiwumi said Justice Anderson
had laid the groundwork for his doubt when reviewing the evidence.  He also pointed out that he had made a submission
of no case to answer at the close of the prosecution’s case, but the judge had
ruled there was a case to answer.

The final ground Mr. Perry put
forward was that the judge had not adequately explained his reasons for his
verdict. He argued that, just as the defendant has the right to know why he was
found guilty, the Crown has the right to know why it was unsuccessful.

Further, Mr. Perry urged, the
public has the right to know.

Mr. Akiwumi said the court had to
balance the public’s right to know with the ability of the acquitted man to
pick up the pieces of his life and move on. It could be, he agreed, that the
judge was not explicit enough in his reasons, but that was a matter of style,
not law.

The court asked if a judge is
obliged to give reasons for an acquittal. Mr. Akiwumi said it may well be good
practice, but no case required it.

The Court of Appeal spent all of
Monday hearing these arguments. A preliminary point was whether the Crown was
too late in bringing the appeal, since the rules refer to a time limit of 14
days for convicted persons to appeal their conviction.

Sir John heard the arguments with
Justices Ian Forte and Abdullah Conteh. The court will put its reasons in
writing.

The Court of Appeal Law was amended
in October 2005 to allow the Attorney General to appeal against a judgment of
the Grand Court
“on any ground of appeal which involves a question of law alone.”

The amendment further states that
when the Court of Appeal allows such an appeal, “it shall set aside the discharge
or acquittal of the accused person and remit the case to the court of original
jurisdiction to be retried.”

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