The recent decision by the Privy Council to shift away from the parasitic accessory liability law as laid down in the Chan Wing Siu murder case, 1984, would not have a major effect on local cases where sentences have already been handed down.
That’s the view of long serving Director of Public Prosecution (DPP) Christopher Nelson, QC who was interviewed on the issue last week Thursday by THE NEW TODAY newspaper.
Nelson said, while the “Privy Council made a subtle but significant change in the law,” he does not think “there is necessity for any major inquiry as being called upon,” by a local Attorney.
In light of the Privy Council’s decision, which was made in the verdict handed down in the case of Jogee and Ruddock, experienced Criminal Attorney, Anselm Clouden called for a review into joint enterprise cases in the country.
However, DPP Nelson, who has more than 30 years experience in law, told this newspaper that “the fallout from the (Privy Council’s) decision would be minimal in the context of Grenada.”
“It is just a change in the interpretation and application of the law, so henceforth the jury would be directed along the new guidelines”, he said.
“I don’t foresee a flood of cases being reopened,” he added while pointing out that the “judges would have to direct the jury in accordance with the law as has been developed by the Privy Council with the recent decision of the Jogee and Ruddock.”
The DPP contended that “in the very decision by the Privy Council, they stated that effect of the decision does not mean that the flood gates are open and all those who are previously convicted can now rush the court, it does not work like that.”
Joint enterprise or responsibility to a criminal offence means that each accused person shared the intention to commit a particular crime.
The Chang Wing Sui case basically equated foresight with intent.
According to DPP Nelson, since the institution of the Chang Wing Sui law, “we have only had (in Grenada), probably, no more than four or five cases in which the principle was or could have been enforced.”
He noted that “in most of these cases sentences have already been served” and in order to influence the case a convicted person raising this issue now must be able to show that substantial injustice has been demonstrated.
“Only on that basis will the Court of Appeal grant leave to appeal,” he said, adding that “even to do so (appeal), one must bear in mind that although the law has changed it does not mean that if the law as it is now properly established was applied to the facts of the case when heard that it would have made a difference.”
The DPP stated that he does not foresee any person in Grenada who has been previously convicted in a case in which this principle was applied or could have been applied succeeding in an appeal.
“In most of the cases, had the judge directed according to the law as it is now reinstated, it would have made no difference,” he said, explaining that “most of the cases that we have had here in which the (Chan Wing Sui) principle was applied, a group of men went about to rob and in the course of the robbery someone was shot and killed and all parties knew that the shooter was armed with a loaded gun.”
DPP Nelson said, from his “personal knowledge…based on the evidence of those cases that there wasn’t any miscarriage of justice and that no Court of Appeal would grant special leave to reopen any of these old cases.”
He went on to say: “It is highly unlikely that where someone is part of an armed posse going to rob and one shoots with intent to kill that a jury would say that the (secondary party) did not intend what his partner did.”
Describing the new law developed as “very sound reasoning,” DPP Nelson noted that “this is not the first time that there has been a change in the interpretation development of the common law.”
`He said the change in interpretation of the law “would apply prospectively to cases already in the system and those coming before the court.”