An "error" by former judge Herbert Volney when he conducted a murder trial last year has caused the Court of Appeal to quash the conviction against two men and order a retrial. It would now cost the State extra expense to put the accused through another trial. With an already long list of prisoners awaiting trial, the appellants, Colin Edghill, 35, and Marcus Marshall, 29, who were sent to Death Row in 2009, will remain in custody for several months before the start of a new trial. The ruling by the Court of Appeal comes, ironically, just one week after Volney–now Minister of Justice–launched a scathing attack against Chief Justice and Appeal Court president Ivor Archie.
During his contribution in the 2010/2011 budget debate, Volney accused the Court of Appeal of failing to "deliver appeals" (decisions). At the Court of Appeal yesterday, Justice Paula Mae Weekes said Volney had erred in law when he discharged one jury and selected another in the trial against the men. Dana Seetahal, SC, and Haseen Shaikh appeared for Edghill, while Jagdeo Singh represented Marshall. The appellants were on trial for the murder of businessman Russell Govia and on June 15, 2009 Volney heard a voi dire (trial within a trial) to determine the admissibility of an inculpatory statement. Two days later, he discharged the jury which was already empanelled to hear the trial. On July 1, he empanelled a new jury and started the trial. He did not conduct a new voi dire.
The accused were convicted and sentenced to death on July 25 that year. Yesterday, leading a panel, which included Justices Rajendra Narine and Alice Yorke-Soo Hon, Weekes said Volney acted as if he was "simply continuing the trial." She said it was a "material irregularity" at the trial, which had caused "irreparable damage." She added the appellants were not advised of their right to have the voi dire heard again. They neither waived that right, she said. Seetahal had contended that because Volney effectively had two juries empanelled for the trial, this was a "fundamental and material irregularity". She added that the trial judge erred when he deprived the appellant's right to a fresh voi dire. Responding for the State, Joan Honore-Paul argued that the error caused no prejudice to the accused at the trial.