JUSTICE ON TRIAL - FIGHTING WRONGFUL CONVICTIONS

18 June 2013

AS long as there is a criminal justice system, there will always be miscarriages of justice. 

In Northern Ireland we are no exception, in fact there are countless examples of quashed convictions and miscarriages of justice here over the years.  For anyone facing such situations the Criminal Cases Review Commission (CCRC) is often their last resort.

A publicly funded body set up in 1997, the purpose of the CCRC is to review possible miscarriages of justice in the criminal courts of England, Wales and Northern Ireland and refer appropriate cases to the appeal courts.

Charlene Graham, one of the solicitors in Higgins Hollywood Deazley's criminal department, was herself heavily involved in challenging a high profile miscarriage of justice, the case of Tonderai Chakwana.

In April 2009 at Belfast Crown Court, Zimbabwean national Mr Chakwana was convicted of raping a woman in her own bedroom - he was sentenced to six years imprisonment and placed on the sex offenders register.  The 34-year old had maintained his innocence throughout, saying that they had consensual sex.

After Mr Chakwana - a father of three - had exhausted all his rights of appeal against conviction under a previous legal team, Mrs Graham became involved in the case.  Mark Barlow BL, a barrister practising from Garden Court North Chambers in Manchester as well as here in Northern Ireland, was instructed.

Together they identified a number of concerns about the conduct of the trial, particularly around directions given by the judge to the jury regarding the nature of the prosecution evidence.  They drafted their written representations and submitted the case to the CCRC.

In their report into the case, the CCRC shared the concerns of Mr Chakwana's legal team about the judge's directions and also uncovered what Mr Barlow later described as a "significant irregularity" in the prosecution evidence, which has potentially far reaching consequences for the way in which witness statements are submitted in future criminal trials in Northern Ireland.

As a result, Mr Chakwana's conviction was quashed.  Mrs Graham recalls working on the case:

"I first met Mr Chakwane in 2011.  At that time, he was serving a six year sentence at HMP Magilligan having been convicted of rape and having exhausted all rights of appeal he had no where else to turn. 

"I recall the day the CCRC report arrived on my desk.  I read it with great anticipation knowing that this was, in all reality, Mr Chakawane's last hope.  The CCRC had upheld all of the grounds we had referred to them. 

"That, however, was not the end of the matter.  As I read on I discovered that the CCRC had found a statement written by the Complainant that had never been disclosed to the original defence team. 

"Essentially, a similar statement had been disclosed to the defence removing a line wherein the complainant referred to her previous sexual conduct with other men.  Ordinarily, this type of evidence regarding previous sexual conduct would not be admissible at trial.

"In this case, however, this information was of significant importance to how both the prosecution and defence conducted their respective cases.  This information should not have been hidden from the defence.  It is for the trial Judge to decide what material is admissible in any trial.

"This case undoubtedly raises concerns with regards to the editing practices and procedures of the prosecuting authorities in Northern Ireland.  Unlike in England and Wales where there are guidelines in place from the Attorney General as to when and by what means the  editing of witness statements should take place, here in Northern Ireland there are no such guidelines. 

"It can only be hoped that following the decision in this case, the Director of Public Prosecutions will look at this matter.

"It was a pleasure to have worked on this case which led to Mr Chakwana's conviction for rape being quashed by the Court of Appeal."

Higgins Hollywood Deazley are pleased to confirm that we are now considering the case of Uday Joshi, who was convicted at Belfast Crown Court on 3rd February 2012 in respect of historic child abuse allegations dating back to 1979.  He was sentenced to a total of 6 years imprisonment. 

It is anticipated that written submissions will be made to the Criminal Cases Review Commission in September 2013.  Keep an eye out in our news section for updates on this case.

Read the Chakwana judgement here: http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/SummaryJudgments/Documents/j_sj_130513-1/j_sj_R-v-Tonderai-Chakwana_130513.html

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