BASSETERRE, St. Kitts – THE local sitting of the Eastern Caribbean Supreme Court of Appeal got off to a productive start Monday (May 18) with five of the 13 High Court Criminal appeal matters being disposed of.

Appealing against conviction and by extension, sentence, Elvan Warner, who was convicted of “building breaking” and sentenced to three years imprisonment, appeared before the Eastern Caribbean Supreme Court of Appeal to argue his case.

Self-represented, Warner agued before the Justices of Appeal that the main grounds for his appeal is that, during his trial, he was never offered the opportunity to call his alibi witness, whom he explained was of utmost importance to his case.

In response to Warner’s argument, Director of Public Prosecution Paulina Hendrickson told the court that according to the court record, “the election was put to the appellant” during his trial. 

“The election” is put to the accused when, usually following the close of the prosecution’s case, he is informed of his right to either remain in the prisoner’s dock and say nothing or take the witness stand and give evidence for the jury’s consideration. In any event, as the accused would be told, it is his right to call witnesses to give evidence on his behalf. 

DPP Hendrickson explained that she has never encountered a situation where “the election” was not put to the accused by the trial judge.

However, the Justices explained that the difficulty arises because the court’s record does not give a detailed account of “the election” put to Warner, so it would be difficult to say whether the section which allows him to call witnesses was actually put to him. Warner however maintained that he was never given that opportunity.

Chief Justice Hugh Anthony Rawlins informed that his panel was satisfied that Warner ought to have been given the opportunity to call witnesses.  However, the Justices ordered that the ruling of the High Court was upheld as other evidence against Warner is sufficient to support both the conviction and sentence.

Ottley Simmonds, 54, who was in 2006 convicted of “attempted murder”, also stood before the Court appealing his conviction on the grounds that the trial judge prejudiced the case during his summation of the evidence. 

Simmonds explained to the court that he no longer wished to uphold his grounds for appeal. He however explained that he suffers from hypertension and since his incarceration he has been hemorrhaging through the nose. It is on that premise that he beseeched the court to lessen his sentence.

The Justices explained that the injuries suffered by the virtual complainant in the case were very serious, so much so that he suffers from their aftereffects. They ordered that both conviction and sentence of the High Court be upheld, noting that having taken into account the injuries suffered by the victim, “we cannot, in good conscience, find a way to assist you in reducing your sentence”.

Other appellants include: Phillip Francis who was convicted of “receiving” in 2007; Leon Samuel who was convicted of “house breaking” in 2007; Joseph Charles and Evron Williams who were jointly convicted of “assault with intent to rob” in 2008; Garvey Rogers who was convicted of “attempted murder” and Zahid Ali who was convicted of “rape” in 2008.

Ali’s appeal was allowed and he has been freed, and the appeals against sentence filed by Rogers, Charles and Williams were allowed and their sentences educed by one year. Francis’ appeal was dismissed “for want of prosecution” and as was explained in court, Francis finished serving his sentence since February of this year.

Both civil and criminal matters were heard yesterday and court resumes today, where other criminal matters are scheduled for hearing.