By Bennette Roach
The Eastern Caribbean Court of Appeal (ECCA) accepted all the arguments that were put forward in presenting the appeal against the Montserrat Director of Public Prosecutions’ (DPP) desire to retry Cassell. The DPP argued generally that “the main consideration is whether in the interest of the community and the victim, a person who is convicted of a serious crime should be brought to justice and not escape merely because of technical shortcomings in the conduct of the trial or in the directions to the jury…”
The appeal court headed by acting President of Appeal Justice Louise Blenman refused DPP Oris Sullivan’s request and his bid to retry Attorney-at-Law Warren Cassell, who previously had his conviction squashed by the Privy Council. On Tuesday this week, Cassell was back in court in a bid to fend off this latest bid to have him retried by the Montserrat D.P.P.
The Privy Council in its last ruling, quashing all the convictions, had indicated that any matter to do with a retrial was down to the ECCA. The matter then came back to the Eastern Caribbean Court of Appeal who has ruled that it is not in the interest of justice to order a retrial.
The ECCA judges this time upheld the arguments of Cassell’s Attorney, Dr. David Dorsett arguments in their final decision.
Last July, Attorney Cassell, had multiple convictions quashed by the Privy Council. Nonetheless, the Privy Council (which is still the final appellate court for the British Overseas Territory of Montserrat) maintained that any issue for retrial should be resolved in the local courts. As a result, the ECCA invited written arguments from both parties on the issue.
The learned DPP argued that retrial was necessary to establish guilt or innocence of the charges. However, during his oral presentation, he was asked by Justice Louise Blenman for case law where a retrial was re-ordered in similar circumstances. Mr. Sullivan was unable to provide one.
In his written submissions, Cassell’s Attorney-at-Law Dr. David Dorsett argued that Cassell had served his two-year sentence in full and a retrial would serve no purpose since he cannot be sentenced for any time more than the sentence past in the first trial.
In delivering an oral unanimous ruling, Justice Mario Michel noted that there were several factors that the court ought to consider in deciding whether to order a retrial including:
- Seriousness of offence
- Nature of offence
- Strength of evidence against the appellant
- Publicity which the trial had obtained and whether it would operate to prejudice the appellant; and
- Interest of justice.
Justice Michel further reasoned that Cassell had already served his full sentence and that the DPP has failed to provide any case law where a person who served all of his sentence and was still retried. In conclusion, Justice Michel stated that: “we are of the view that the interest of justice would not be served by ordering a retrial.”
The Court sought from Sullivan arguments to support his request for a retrial against Dr. Dorsett’s arguments that had been laid prior before them along with those of the DPP.
One argument that Attorney Dorsett, whom the Court told that it was not necessary to address after hearing from the DPP, was “The court did not order a retrial but indicated that the Prosecution was at liberty to do so.,” noting that no re-trial was ever pursued.
He also argued: “…it cannot be maintained that the offences for which the Appellants have been convicted (i.e Conspiracy to defraud and Procuring the Execution of a Valuable Security by Deception), fall into the category of being “serious”.
“While the Appellants are in no way trivializing the said offences an examination of the cases reveal that the courts consider offences such as Murder, Manslaughter, Robbery and Drug Trafficking as serious crimes – offences for which the sentences vary from 20 years to life imprisonment.”
That ends a chapter of Cassell’s life that he says will be very interesting when recaptured in a book. Cassell is the author of several books already, and is the editor at WestIndianLawyers.com.