The Queen v Vasyli

A retrial should not be ordered where the prosecution evidence at the original trial was insufficient to justify conviction by a properly directed jury. That restriction prevents the prosecution receiving a second chance to cure an evidential deficiency. Where there was a case to answer and conviction was quashed for trial error or misdirection, a retrial is not inherently unfair merely because further or different evidence may be adduced. In a circumstantial case, there is no case to answer only where the prosecution evidence, taken at its highest and with reasonable favourable inferences, could not support guilt beyond reasonable doubt or exclude reasonable hypotheses consistent with innocence.

The appellant was convicted of murdering her husband after a jury trial in the Bahamas and sentenced to 20 years’ imprisonment. The Court of Appeal quashed the conviction. A majority ordered a retrial, while Crane-Scott JA would not do so because the evidence was weak and inconclusive. The parties accepted that the reasons for the retrial order could not stand, but agreed that the Privy Council should decide whether there had been a sustainable case to answer. The central issues were whether the prosecution evidence was sufficient for a properly directed jury and, if so, whether the retrial question should be decided by the Board or remitted to the Court of Appeal.

The Board allowed the appeal, set aside the Court of Appeal’s order for a retrial and remitted the question whether a retrial should be ordered to that court. It decided that there was a case to answer.

1. Retrial principle. Under section 13(2) of the Court of Appeal Act, a retrial should not be ordered where the prosecution evidence at the original trial was insufficient to justify conviction by any reasonable jury properly directed. The principle in Reid v The Queen [1980] AC 343 concerns a no-case-to-answer situation. Where there was a case to answer and the conviction was quashed because of trial mishandling or misdirection, a retrial is not inherently unfair merely because further or different evidence may be presented. The Board rejected the submission that the court should assess all the evidence at trial, since that would trespass upon the jury’s fact-finding function.
2. No-case test. Applying R v Galbraith [1981] WLR 1039, the question was whether the prosecution evidence, taken at its highest, was such that a properly directed jury could not properly convict. For circumstantial evidence, the Board applied the guidance in Director of Public Prosecutions v Varlack [2008] UKPC 56, approving the approach in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1.
3. Application. The unknown male DNA profile did not establish an intruder and the jury could reasonably reject that hypothesis. The timing evidence was uncertain and rested on submission and extrapolation. The evidence permitted the jury to find that the deceased’s blood was present on the dresses, and the locked patio door was a matter for the jury. Considering the evidence as a whole, including the relationship, opportunity, absence of evidence of an intruder, blood evidence and the location of the body, a properly directed jury could convict.
4. Remittal. The usual practice was to remit the retrial discretion to the Court of Appeal because it was better placed to balance the relevant factors and assess current local conditions. The earlier decision had been made without submissions from the appellant, and ancillary directions might be required. The Board therefore remitted that issue promptly, while excluding the already determined question whether there was a case to answer.

• Court of Appeal of the Commonwealth of the Bahamas: On 25 July 2017, the conviction was quashed. Allen P and Isaacs JA ordered a retrial; Crane-Scott JA dissented on that issue. Final leave to appeal to the Privy Council was granted on 3 August 2018.
• Privy Council: The appeal was allowed. The retrial order was set aside and the question whether a retrial should be ordered was remitted to the Court of Appeal.