Crown waits on Anglin ruling

| 01/08/2013

(CNS): After a day and a half of submissions from the lawyers involved, mostly from the crown, the Court of Appeal judges have said they will need time to consider their decision regarding the crown’s appeal against the acquittal of Devon Anglin for the murder of 4-year-old Jeremiah Barnes over three years ago. Aware of the importance of their decision, not just to the defendant, the crown and the victim’s family but the community at large, the three judges said the case needed careful consideration. Although a number of issues were argued during appeal hearing, the panel can only order a new trial if they find the trial judge wrong in law, not on his interpretation of evidence.

Despite the many controversies that have arisen in relation to the case, the crown’s bid for a retrial must be based on legal misdirection and not in the findings of fact by the judge.
Andrew Radcliffe, QC, argued hard that Justice Cooke’s refusal to consider all of the evidence in the round and to dismiss the eye witness testimony of the child’s parents without considering it in context and in conjunction with supporting circumstantial evidence, as well as his failure to consider any of the expert VT evidence, amounted to an error in law.

John Ryder, QC, who represented Anglin in defence of his acquittal in the case, argued that the judge had acted in accordance with the law, had applied it properly and had reached a rational and reasonable conclusion.

The judge was entitled to find as hedid, Ryder argued, because when he concluded that the circumstances were such that both the parents of Jeremiah had to have been mistaken in their belief that they saw Anglin and that their evidence was not of any probative value, he could not consider the rest of the evidence as it had already been agreed it was insufficient to convict without the eye witness accounts. Andy and Dorlissa Barnes, the parents of the child, were the main witnesses in the case.

The judges pushed Radcliffe hard during the hearing to demonstrate that the judge had misdirected himself. The president of the appeal court, Sir John Chadwick, said he was “open to the idea that there was a point at which, in law, a judge could not simply ignore evidence”, but had he arrived at his conclusion in the correct way then he had not erred in law. His two colleagues also pressed Radcliffe that much of his argument went to what could be seen as the judge’s finding of truth and fact and not the law.

However, Radcliffe pressed on and implied that the judge had taken a short cut to his decision and one that he was not entitled to take. Regardless of any inconsistencies or discrepancies in the eye-witness evidence, Radcliffe argued that the judge could not ignore it completely without considering the rest of the evidence, especially before he leapt onto the evidence of a gas station attendant, whose own eye-witness account was seriously flawed, as demonstrated by the VT expert.

Radcliffe said that the crown had presented a strong case against Anglin, which included direct eye-witness testimony from the parents, who were sitting in the car when the gunman opened fire and who both knew and said they recognised Devon Anglin. In addition, Anglin was seen less than ten minutes later nearby, without a shirt, in the car in which the gunman had left the gas station. When the car was picked up by police, it had gunshot residue in the seat where Anglin was sitting. He turned up a little later at his cousin’s house, where he showered and borrowed a shirt from his cousin.

The CCTV evidence at the gas station showed much of the clothing worn by the gunman was also warn by Anglin at the court that same morning, when he was caught on the courthouse CCTV as he arrived for a traffic hearing.

A key issue in the case, however, was that the trial judge had rejected all of this and only accepted evidence from the gas station attendant, who describes the gunman as wearing a Halloween mask.

And while the CCTV screen at the gas station would have shown that the gunman appeared to be wearing a full face mask, once the tape was played on a proper uncompressed screen in the court during the trial, it was clear the gunman was wearing a bandana, as described by Barnes, enabling both him and his wife to see the gunman’s eyes.

Related article on CNS:

Mom recalls horrific night

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