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Evan’s Murder conviction quashed, sentence set aside,  retrial ordered

GavelThe Case against Orin Evans charged with the murder of businessman Aubrey Barry, both of Brades, Montserrat, attracted much attention as it was the second murder within a short space of time in Montserrat which hardly sees a crime of that nature.

On Tuesday November 25, 2014 only breathed a sigh of relief when the Eastern Caribbean Court of Appeal quashed his murder conviction and set aside his 35-year sentence, but ordered a retrial.

Orin Evans was convicted a year ago in November after he was found guilty by a nine-member jury after trial before His Lordship Justice Redhead and sentenced to 35 years which he had been serving at Her Majesty’s Prison in Brades.

Evans had said that it was an altercation with businessman Aubrey Barry ended that brought about Barry’s death.  According to Evans, Barry entered his house uninvited and he was forced to defend himself.

Attorney-at-law for the Appellant David Brandt, appealed on several grounds including that the “learned Trial Judge misdirected the jury in that he failed to tell them that since the issue of self defence was raised, the burden of negating it rested on the prosecution and His Lordship failed to follow the guidelines set out in R v. Abraham 57 Cr. App. R. 799.

The Appellant’s attorney cited the UK case and argued that case showed the Learned Judge in the Court of Appeal stated that a trial judge when summing up should deal with the issue of self defence as follows:-

“Give a clear……. general direction as to the onus of proof; then immediately follow with a direction that in the circumstances of the particular case there is a special reason for having in mind how the onus and standard of proof applies and go to deal……. for example with the issue  of self defence by telling the jury , something along these lines: Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has an important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self defence. A person who acts reasonably in self defence commits no unlawful act. By his plea of self defence the accused is raising in a special form the plea of not guilty. Since it is for the Crown to show that the plea of not guilty is unacceptable, so the crown must convince you beyond reasonable doubt that self defence has no basis in the present case. Having done so the trial judge can then proceed to deal with the facts of the particular case. The last thing I want to do is to lend support to the misconception that any prescribed words have to be used in giving the directions.”

It was those guidelines that the Appellant’s Attorney-at-law argued the Learned Trial Justice Redhead failed to follow.  In addition, Mr. Brandt argued that Justice Redhead did not direct the jury that once the issue of self defence was raised that the onus remained throughout on the prosecution to satisfy them (the jury) that he was not acting in self defense; and if they were left in doubt whether the killing may or may not have been done in self defense the proper verdict would have been not guilty.  Another mistake Mr. Brandt argued Justice Redhead made was that he failed to explain that if the Defendant honestly believed that he needed to act as he did even though he was mistaken then he should have been found not guilty.

By these failures, Evans through his Attorney-at-law, contended that there was a real risk that the jury would conclude that the Appellant had to prove beyond reasonable doubt that he acted in self defence. This is compounded by the fact that the law gives the Appellant the right to give an unsworn statement from the dock and that if he exercises that right they must not draw any adverse conclusion from that.

Given the absence of a proper direction to the jury on the issue, the court quashed the conviction and set aside the 35-year sentence.  The court also ordered a retrial of the matter.

Evans brought several other grounds of appeal, but the court stated that it was unnecessary to consider the other grounds.

Mr. Evans is expected to stand trial during the next assizes.  In the meantime he awaits trial at Her Majesty’s Prison in Brades.

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GavelThe Case against Orin Evans charged with the murder of businessman Aubrey Barry, both of Brades, Montserrat, attracted much attention as it was the second murder within a short space of time in Montserrat which hardly sees a crime of that nature.

On Tuesday November 25, 2014 only breathed a sigh of relief when the Eastern Caribbean Court of Appeal quashed his murder conviction and set aside his 35-year sentence, but ordered a retrial.

Orin Evans was convicted a year ago in November after he was found guilty by a nine-member jury after trial before His Lordship Justice Redhead and sentenced to 35 years which he had been serving at Her Majesty’s Prison in Brades.

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Evans had said that it was an altercation with businessman Aubrey Barry ended that brought about Barry’s death.  According to Evans, Barry entered his house uninvited and he was forced to defend himself.

Attorney-at-law for the Appellant David Brandt, appealed on several grounds including that the “learned Trial Judge misdirected the jury in that he failed to tell them that since the issue of self defence was raised, the burden of negating it rested on the prosecution and His Lordship failed to follow the guidelines set out in R v. Abraham 57 Cr. App. R. 799.

The Appellant’s attorney cited the UK case and argued that case showed the Learned Judge in the Court of Appeal stated that a trial judge when summing up should deal with the issue of self defence as follows:-

“Give a clear……. general direction as to the onus of proof; then immediately follow with a direction that in the circumstances of the particular case there is a special reason for having in mind how the onus and standard of proof applies and go to deal……. for example with the issue  of self defence by telling the jury , something along these lines: Members of the jury, the general direction which I have just given to you in relation to onus and standard of proof has an important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self defence. A person who acts reasonably in self defence commits no unlawful act. By his plea of self defence the accused is raising in a special form the plea of not guilty. Since it is for the Crown to show that the plea of not guilty is unacceptable, so the crown must convince you beyond reasonable doubt that self defence has no basis in the present case. Having done so the trial judge can then proceed to deal with the facts of the particular case. The last thing I want to do is to lend support to the misconception that any prescribed words have to be used in giving the directions.”

It was those guidelines that the Appellant’s Attorney-at-law argued the Learned Trial Justice Redhead failed to follow.  In addition, Mr. Brandt argued that Justice Redhead did not direct the jury that once the issue of self defence was raised that the onus remained throughout on the prosecution to satisfy them (the jury) that he was not acting in self defense; and if they were left in doubt whether the killing may or may not have been done in self defense the proper verdict would have been not guilty.  Another mistake Mr. Brandt argued Justice Redhead made was that he failed to explain that if the Defendant honestly believed that he needed to act as he did even though he was mistaken then he should have been found not guilty.

By these failures, Evans through his Attorney-at-law, contended that there was a real risk that the jury would conclude that the Appellant had to prove beyond reasonable doubt that he acted in self defence. This is compounded by the fact that the law gives the Appellant the right to give an unsworn statement from the dock and that if he exercises that right they must not draw any adverse conclusion from that.

Given the absence of a proper direction to the jury on the issue, the court quashed the conviction and set aside the 35-year sentence.  The court also ordered a retrial of the matter.

Evans brought several other grounds of appeal, but the court stated that it was unnecessary to consider the other grounds.

Mr. Evans is expected to stand trial during the next assizes.  In the meantime he awaits trial at Her Majesty’s Prison in Brades.