BASSETERRE, St. Kitts – CALVESTER ‘CALLY’ HERBERT and Patrick ‘Southy’ Weekes were left in limbo after questions surrounding a particular piece of legislation, which gives the trial judge certain powers, were still unanswered.
The men stood trial last week for the murder of Gerard Saddler, the attempted murder of Glen Liburd and also for the offence of having a firearm in possession with intent to endanger life, and the empanelled jury failed to arrive at a majority in favour of either end of the spectrum.
During the January 2005 Criminal Assizes, the men were tried and the jury was undecided. The case went back to trial during the following assizes and they were convicted. They appealed both conviction and sentence and late last year the Eastern Caribbean Court of Appeal quashed both and ordered that, in the interest of justice, the duo be re-tried.
At the end of the hearing, mention was made of The Law Reform (Miscellaneous Provisions) Act, No. 10 of 1998, in particular Section 37A, which gives the trial judge particular powers if certain preconditions are met.
“In any proceedings where the jury fails to agree and there is a second trial in the same case and no verdict is delivered by the jury within four hours after the conclusion of the summing-up of the presiding judge at the second trial, then the judge, if he is satisfied that there is no prospect of the jury agreeing, shall enter a verdict, except that he shall give reasons for the verdict entered by him,” the section reads.
Submissions were made by the Director of Public Prosecution (DPP) Paulina Hendrickson on whether or not this piece of legislation is applicable to this case, according to which the legislation gives the judge the power to act as the “fact finding tribunal” in the matter. Her submission further indicated that a retrial would not be advisable seeing that Herbert and Weekes have already been tried three times.
DPP Hendrickson explained that in order for the Section 37A of the act to take effect, the following conditions must be met:
• There must have been a retrial;
• The jury must not have been able to arrive at a verdict in favour or against the accused;
• The jury must have failed to deliver its verdict for or against, within four hours after the summation concludes; and
• The trial judge must be satisfied that the members of the jury could not and cannot arrive at a verdict for or against.
DPP Hendrickson explained that all preconditions have been met and the section of law is applicable in this instance.
Defence attorney Dr. Henry Browne take on the matter was that, “unless it is demonstrably clear that no jury, based on the facts, could arrive at a verdict, Your Lordship should not impose your verdict”.
Another issue arising from the arguments is whether or not last week’s trial constitutes the third trial or the second. The issue is if, when the Court of Appeal quashed both sentence and conviction from the “second trial”, that trial was then deemed null and void effectively rendering last week’s trial as the second.
His Lordship Justice Francis Belle reserved his decision until July 15, 2009 and both Herbert and Weekes were taken back to Her Majesty’s Prison where they await the arrival of that date. It is then that they are expected to find out whether they would be freed or continue their incarceration.
