Att Gen v Perez

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Forte and Conteh, JJ.A.)
• Judgment Date: 15 March 2010
• Court: Court of Appeal (Cayman Islands)
• Date: 15 March 2010

Court of Appeal

(Chadwick, P., Forte and Conteh, JJ.A.)

ATTORNEY GENERAL

and

PEREZ

D. Perry, Q.C. and T.N. Ward, Senior Crown Counsel, for the Crown;

A. Akiwumi for the respondent.

Cases cited:

(1) Att. Gen. v. Miller, 2009 CILR 162, referred to.

(2) Smith (Justis Raham) v. R., [2000] 1 W.L.R. 1644; [2000] 4 LRC 432; [2000] UKPC 6, referred to.

Legislation construed:

Court of Appeal Law (2006 Revision), s.28: The relevant terms of this section are set out at para. 2.

s.30: The relevant terms of this section are set out at para. 12.

Schedule, para. 1: The relevant terms of this paragraph are set out at para. 10.

Criminal Procedure-appeals-appeals against acquittal-14-day time limit for filing notice of appeal under Court of Appeal Law (2006 Revision), Schedule, para. 1 inapplicable to appeal by Attorney General under s.28(1) against acquittal-no sentence passed from which time runs

Evidence-standard of proof-criminal cases-charge to be proved beyond reasonable doubt so that court sure of accused”s guilt-no variation of standard of proof according to gravity of charge

The respondent was charged in the Grand Court, Criminal Division with murder.

The respondent was acquitted by the Grand Court (Anderson, Ag. J., sitting without a jury) on the ground that the prosecution had not satisfied the burden of proof. The Crown appealed against the acquittal under s.28(1) of the Court of Appeal Law (2006 Revision). The notice and grounds of appeal were filed 28 days after the verdict.

On appeal, the Crown submitted that the acquittal should be set aside and the respondent retried. It maintained that (a) the court had jurisdiction to hear the appeal since the Court of Appeal Law (2006 Revision), Schedule, para. 1 only set a time limit for giving notice under s.28 of the Law when a ‘sentence . . . was passed’ and no sentence had been passed

here because the accused had been acquitted; (b) similarly, s.28 did not require leave for an appeal against acquittal and para. 1 of the Schedule only imposed a time limit for giving ‘notice of an application for leave’; (c) although the trial judge had initially directed himself correctly on the standard of proof in criminal cases, he had later erred in suggesting that the standard was ‘enhanced’ when the charge was one of murder; and (d) the judge”s speculations about the circumstances surrounding the murder had no evidential basis and should not have played any part in his consideration of the case.

The respondent submitted in reply that (a) the appeal should be dismissed because notice had not been given within the 14-day time limit prescribed by para. 1 of the Schedule; and (b) the reference by the trial judge to the ‘enhancement’ of the standard of proof when the charge was one of murder added nothing to his earlier (uncriticized) direction that he needed to be sure that the prosecution had proved its case to the extent that he could be sure that the accused had committed the crime with which he was charged.

Held, assuming jurisdiction, setting aside the acquittal and ordering the re-trial of the respondent:

(1) The court had jurisdiction to hear the appeal. There was no time limit for giving notice of an appeal against acquittal under s.28 of the Court of Appeal Law (2006 Revision). Paragraph 1 of the Schedule to the Law imposed a time limit of 14 days from the passing of sentence on the filing of notices of appeal under ss. 28 and 30-but in the case of an acquittal, no sentence was passed from which time could run. The terms of para. 1 could only apply to that part of s.28 which related to appeals where the accused had been ‘convicted of an offence other than the one with which he [was] charged’, and to s.30 (the reference of wrong or unduly lenient sentences to the court). The fact that the notice and grounds of appeal were filed 28 days after the verdict was therefore immaterial-though, had it been necessary, the court would have granted an extension of time given that the reason for the delay (the importance of the issue requiring consultation with leading counsel overseas) was acceptable (para. 11; paras. 13–15; para. 18).

(2) The law was clearly deficient as (a) an acquitted person should reasonably be able to expect finality by the statement of a short and finite period within which the matter could be re-opened, rather than the decision remaining open to challenge indefinitely; and (b) there was no reason to draw a distinction between an appeal against acquittal and an appeal from conviction on a different charge. However, the legislature appeared to have intended to grant the Attorney General an unfettered right of appeal against acquittals and discharges. The task of remedying this deficiency, therefore, should be undertaken by the legislature and not by the court (paras. 16–17; para. 19).

(3) The acquittal would be set aside and the retrial of the respondent

ordered because the trial judge had clearly erred on a point of law in misdirecting himself as to the standard of proof required. His reference to the ‘enhancement’ of the standard when the charge was one of murder was clearly intended to add to what he had already said about the standard of proof generally. The court could only conclude that he thought the standard of proof required for murder was higher than that required for a lesser crime. In fact, the standard of proof required in criminal cases did not vary with the gravity of the charge-it always had to be proved beyond reasonable doubt, so that the court was satisfied as to the accused”s guilt (paras. 25–30).

1 CONTEH, J.A., delivering the judgment of the court: The respondent to this appeal, Josue Carrillo Perez, was tried on indictment on a single count of murder before a Judge of the Grand Court, sitting alone without a jury. He was acquitted on October 13th, 2009. The Attorney General appealed from that acquittal under s.28(1) of the Court of Appeal Law (2006 Revision). On hearing the appeal, this court concluded that the acquittal should be set aside and that the case should be remitted to the Grand Court to be retried. We indicated that we would put our reasons into writing.

2 Trial by judge alone is permitted at the election of the accused, by s.129(1) of the Criminal Procedure Code (2006 Revision). Section 28 of the Court of Appeal Law, introduced by amendment in 2005, is in these terms:

‘(1) Where an accused person tried on indictment is discharged or acquitted by a trial judge sitting alone or by a jury (where such jury has been directed to do so by the trial judge) or is convicted of an offence other than the one with which he is charged, the Attorney-General or the complainant may appeal...