Court of Appeal: Judge was wrong

The Court of Appeal released its
reasons on Friday for sending Josue Carillo Perez back to Grand Court for trial on the charge that
he murdered Canadian national Martin Gareau in May 2008.

Perez was found not guilty last
October after trial by judge alone. The Crown appealed and Perez was taken back
into custody on 15 March after court president Sir John Chadwick announced that
the Crown’s appeal was allowed.

Perez previously spent 16 months in
custody awaiting trial.

Attorney Anthony Akiwumi, who
defended Perez at trial and who represented him in the appeal, has had to wait
for the Court of Appeal reasons before he could apply to have a further appeal
heard by Privy Council and before he could again apply for Perez’ bail.

The three judges of the Court of
Appeal emphasised that they were not concerned with a detailed consideration of
the facts of the case or the evidence.

It is not the function of the Court of Appeal to review the judge’s
assessment of facts, they pointed out. The only question for the court was
whether the judge directed himself in accordance with the law.

David Perry QC argued for the Crown
that Justice Roy Anderson had misdirected himself as to the standard of proof
in cases of murder.

After describing as plausible a
theory of how “this vile act” was committed, Justice Anderson continued:
“Plausibility, however, is not an adequate basis for a criminal conviction and certainly the standard is enhanced when
the charge is one of murder.”

The Court of Appeal noted that no
criticism could be made of the judge’s earlier comments on the standard of
proof – that the Crown had established its case beyond reasonable doubt, and
that it was for the prosecution to prove guilt so he could be sure that this
accused committed this crime.

The question for the Court of
Appeal was: What, if anything, did the judge intend to add by the words “and
certainly the standard is enhanced when the charge is one of murder”?

Mr. Akiwumi had responded that the
words added nothing. He said the judge had already directed himself that he had
to be sure; he could not have thought that he needed to be “surer than sure”.

But the appeal judges said they
were not persuaded by that submission.

“We find it impossible to read the
words ‘certainly the standard is enhanced when the charge is murder’ as other
than a self-direction by the judge
that, because he was concerned with a charge of murder, he needed to apply a
different standard – an enhanced standard – from the standard he would apply
if, for example, the charge were one of burglary.”

The appeal judges illustrated their
point by supposing a burglary trial in which the judge tells jurors that they
need to be “sure, but not as sure as you would need to be if this were a charge
of murder” or “sure, but not to the standard that would apply in a murder

 If such a direction
were given, the Court of Appeal had no doubt a guilty verdict would be set

“There is only one standard of proof
– proof beyond reasonable doubt – in criminal trials. The standard of proof
does not vary according to the charge…. Accordingly, we find the judge was
wrong in law in the self-direction
which he gave on the standard of proof. We are satisfied that this was a
serious misdirection on a fundamental
element of the trial,” the Court of Appeal concluded.

On a separate question of how much
time the Crown has to file an appeal against acquittals, the Court of Appeal
ruled that, the way the law is written, the Crown was not bound by the 14-day
limit defendants have.

But there is a need for finality
when a person has been acquitted or discharged. “In the view of the Court it is
obviously unfair and unsatisfactory that an acquitted or discharged person
after a trial by judge alone (or after a direction
of no case to answer) should face the prospect that the matter may be re-opened
at some indefinite date in the future.”

The Court of Appeal therefore
expressed the view that the legislature should consider whether there should be
prescribed in the law a limited period for the lodging of an appeal by the
Attorney General.

Hearing the appeal with Sir John,
the court president, were Justice Ian Forte and Justice Abdullah Conteh.