Court notes to decide guilt of 'attacker'

Friday 14 June 2019

A judge will have to decide whether a man was wrongfully found guilty of grave and criminal assault based on the notes of a Magistrate he claims was ‘biased’, after transcripts of the original trial were lost.

Taken by Royal Court Commissioner Julian Clyde-Smith, the decision to allow the man to appeal his conviction came following an unusual hearing that threw up complex questions about legal protocol.

Normally a legal appeal involves going through transcripts of court hearings and trials – allowing the decision-making judge to ‘hear’ the evidence again without having to stage a retrial.

In this case, however, there were no transcripts because the court’s recording equipment had failed, leaving the man under threat of having to undergo a full trial all over again.

Despite the unusual circumstances, and the fact the appeal was technically filed outside the standard timeframe, Commissioner Clyde-Smith has given it the go-ahead.

Pictured: The Magistrate Court decision is being appealed in the Royal Court.

To make his decision over whether the man is truly guilty of grave and criminal assault, the Royal Court judge will instead  rely on the notes of the Magistrate who originally convicted him and the lawyers initially involved. 

The appellant contesting the case claims it was the Magistrate’s bias that resulted in his conviction – an accusation disputed by the Crown.

At an earlier hearing, Advocate Olaf Blakeley – the man’s legal representative – made the case that his client, the victim and a witness to the assault, who all gave evidence at his trial, should be re-called so that the Court of Appeal can hear their testimony again in lieu of an official transcript.

Advocate Carla Carvalho – appearing for the Crown – objected to this suggestion, stating that it would effectively be hosting a re-trial in the Royal Court rather than focusing on whether the Magistrate herself arrived at the right decision given the evidence before her.

Advocate Blakeley also called into question the standard interpretation of a 70-year law, throwing open the question of whether the eight-day window which lawyers have to file conviction appeals should run from the date the defendant is convicted or the date they are sentenced.

Pictured: The appeal has thrown open several questions about legal protocol.

In his judgment, Commissioner Julian Clyde-Smith, who was tasked with advising on how this case should proceed, agreed with Advocate Carvalho that the evidence shouldn’t be recalled.

Although he disagreed with Advocate Blakeley’s interpretation of the law, he allowed the appeal to go ahead regardless of it being filed ‘late’.

The Commissioner wrote: “I conclude that armed with the Magistrate’s notes, the notes of trial counsel and the judgment of the Magistrate, the Court will be in a position to ascertain the evidence before the Magistrate and therefore to do justice to the appeal.”

The full appeal will therefore be heard in the Royal Court later this month.