R v Liberal

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Vos, JJ.A.)
• Judgment Date: 09 September 2009
• Court: Court of Appeal (Cayman Islands)
• Date: 09 September 2009

Court of Appeal

(Chadwick, P., Mottley and Vos, JJ.A.)

R.

and

LIBERAL

J. Masters, Crown Counsel, for the Crown;

G. Keightley for the respondent.

Cases cited:

(1) R. v. LongmanUNK(1980), 72 Cr. App. R. 121; [1981] Crim. L.R. 38, distinguished.

(2) State v. Boyce, [2006] 2 A.C. 76; [2006] 2 W.L.R. 284; [2006] 2 Cr. App. R. 7; (2006), 68 W.I.R. 437; [2006] 3 LRC 611; [2006] UKPC 1, dicta of Lord Hoffmann applied.

Legislation construed:

Court of Appeal Law (2006 Revision), s.28(3): The relevant terms of this sub-section are set out at para. 13.

Criminal Procedure-co-accused-inconsistent verdicts-risk of inconsistent verdicts only material when two persons charged with conspiring with each other and no-one else to commit crime-immaterial when multiple offenders charged with committing offence as principals in first degree

Criminal Procedure-retrial-discretion to order retrial-even if lower court”s ruling erroneous on point of law, discretion to allow appeal and order retrial not always automatically exercised-may correct error and dismiss appeal-in determining whether to order retrial, may be considered unfair if accused believed himself absolved from guilt by first trial

The respondent and his co-accused were charged in the Grand Court with two counts of unlawful assault causing actual bodily harm.

The respondent, his co-accused and two other unknown men threw stones at the complainants-a man and his girlfriend-inflicting a puncture wound to the head and bruising to the former. The co-accused pleaded guilty to the second charge, in respect of the female complainant and, as a result, the Crown offered no further evidence against him on the first count (concerning the male complainant) notwithstanding that he had admitted in an interview with the police that he had thrown the stone that had inflicted the head injury. The judge directed the acquittal of the respondent on the first count on the ground that there was the risk of inconsistent verdicts, in that a charge on this count was not being pursued against his co-accused even though he had admitted inflicting the head injury.

The Crown appealed contending that the judge had erred in directing the jury to return a not guilty verdict on the first count.

Held, allowing the appeal and ordering a new trial:

The appeal would be allowed because the lower court had misconceived the case against the respondent. The two co-accused and the two other unknown men were all acting as principals in the first degree in causing actual bodily harm to the complainants, with other injuries being inflicted apart from the head wound, and so the jury could have returned a guilty verdict against the respondent. Further, the risk of inconsistent verdicts

(i.e. that one accused would be found guilty of conspiring with the other but not vice versa) would only be material when the charge related to two persons who conspired with each other and no one else to commit crime. As this was not the case here, but rather an attack by the four men, the court therefore had a discretion under s.28(3) of the Court of Appeal Law (2006 Revision) to allow the appeal because of an error of law and order a new trial. This discretion would not, however, be automatically exercised: a new trial might appear unfair if the respondent believed himself to have already been absolved from guilt but, given that in the instant case there would be no greater risk of an inaccurate verdict on retrial than if the judge had originally allowed the case to go to the jury, and since it was not disputed that the respondent...