Two men from San Fernando, convicted of murdering a burger cart owner during a botched home invasion in 2006, have raised a novel legal point, which if successful on appeal may affect hundreds of persons convicted of and serving sentences for felony murder.

In the appeal, lawyers for Nigel Charles and Marlon Hope are claiming that the High Court Judge, who presided over their trial in 2019, made an error when he allowed the jury to consider whether they were guilty of felony or violent arrestable offence murder when they were only charged with common law murder.

Under the offence, a person can be convicted if death results during the commission of a violent criminal offence even where there is no intent to kill or cause grievous bodily harm.

The duo’s attorneys contend that while Section 2(a) of the Criminal Law Act prescribed the lesser offence, Section 30 (2) of the Criminal Procedure Act did not include it in the alternative offences to be considered by a jury if they (the jury) reject common law murder.

Presenting submission on the duo’s behalf during a virtual hearing before Appellate Judges Alice Yorke-Soo Hon, Mark Mohammed and Malcolm Holdip, yesterday morning, attorney Jagdeo Singh called on the court to intervene on the technical issue, which was permitted in scores of cases before and after the duo’s.

He claimed that if the Office of the Director of Public Prosecutions (DPP) wanted to prosecute the lesser offence, it had to lay the charge before trial and not expect it to be considered automatically at the end of a case.

Singh claimed that the change in process could possibly help address backlogs within the criminal justice system, as accused persons may opt to plead guilty to the lesser offence instead of hoping to be convicted of it at the end of a trial, in which they are facing the possibility of the death penalty for the substantive offence.

Singh noted that the issue was compounded by the fact that the legislation, which created the lesser offence in 1997, did not prescribe a sentence and judges were improperly sentencing convicted persons based on common-law principles.

“The court is powerless…It appears that this point has never been taken,” Singh said, as he admitted that he too was involved in felony murder cases and did not raise the issue previously.

He suggested that an amendment by Parliament was necessary to cure the sentencing deficiency of the legislation.

Asked by Justice Soo Hon about the potential effect of the case on numerous persons already sentenced by the court without legislative guidance, Singh suggested that the court had the power to substitute their felony murder convictions for unlawful act manslaughter convictions and perform sentence reviews.

Responding to the submissions, attorney Travers Sinanan, who represented the DPP’s Office, called on the panel to reject the appeal.

“It appears that he is seeking this court to make law. He is attempting to ask you to go against the established practice,” Sinanan said.

Sinanan also warned about the potential domino effect on scores of similar cases.

“This is a very dangerous route because you would be opening the floodgates,” Sinanan said.

“The point has not been taken before because there was no basis for it,” Sinanan added.

Charles, 53, and 48-year-old Hope were convicted of murdering Harry Chatoor in April 2019 and were sentenced to 14 years and 11 months in prison after the 13 years they spent on remand was deducted from their sentences.

According to the evidence in the case, on July 7, 2006, Chatoor and his family were asleep at their Princes Town home when two men entered and shot Chatoor.

The men then robbed the family of electronics, jewelry and money before escaping.

Chatoor was hospitalised and succumbed to his injuries later that month.

Police claimed that they found some of the stolen items when searching Charles and Hope’s home. Hope claimed an alibi that was rejected by the jury that convicted them.

Chatoor’s son Rishi identified the duo as his father’s attackers but was murdered in May 2015 before the trial.

After hearing the submissions, the appeal panel reserved their judgement to a date to be fixed.

Charles and Hope are also being represented by Amerelle Francis, Vere Marie Khan, and Michael Rooplal.