The Court of Appeal has upheld the decision of a Supreme Court judge to reject an effort to pause the prosecution of a murder trial that “imploded” in front of a jury.

While prosecutors filed a nolle prosequi — an application to indefinitely adjourn a prosecution — in a 2024 murder trial after a witness changed his story on the stand, Puisne Judge Juan Wolffe instead ordered the jury to find the defendants not guilty.

Isaiah Smith, Omari Williams and Jaja DeSilva had been charged with the August 2022 murder of Marcus Wilson, which all three denied.

In a written decision, Justice of Appeal Sir Christopher Clarke said that the Supreme Court could refuse to accept a nolle prosequi in “exceptional” circumstances and the court was allowed to review the decision to offer a nolle.

He added: “I would accept that there can be an abuse of the court’s process if the decision of the DPP to issue a nolle prosequi produces a result which is unfair to the defendants.”

Sir Christopher said that, while a nolle allows the Director of Public Prosecutions to pause a prosecution and resume it at a late date, legislation made it clear that the case needed to be resumed within 12 months of the case being sent to the Supreme Court.

In the case under discussion, he said the 12-month deadline had already passed before the nolle was put forward.

He added: “In those circumstances, the acceptance of a nolle prosequi would have been highly prejudicial to all three defendants, who would have lost the practical certainty of securing a not-guilty verdict from their trial, and of no benefit to the prosecution, which would have had no prospect of resuming the prosecution.

“So, the acceptance of the nolle prosequi would have been even more of an abuse of process and oppressive on the defendants than it would have been if the bar on further proceedings did not apply.”

During the trial, one witness told the court that he had seen a car drive up to Mr Wilson’s home on the night of the murder, but that he had not seen a fight, only the aftermath.

Mr Justice Wolffe said in a written decision that the witness’s evidence differed significantly from the story he had given police, in which he described the details of the fight.

While the Crown filed a nolle, Mr Justice Wolffe said it would have been unfair to accept it in the circumstances of the case and ordered the jury to find all three defendants not guilty.

He wrote in his decision: “It would deprive the defendants of their constitutional right of having a fair trial and of being found ‘not guilty’ in circumstances where the prosecution [has] not proven its case against them beyond a reasonable doubt.

“The hallmark of our criminal justice system is that an accused person is ‘innocent until proven guilty’ and that if the prosecution [fails] to prove the guiltiness of an accused person, then he/she must be found ‘not guilty’.

“The entering of a nolle prosequi in this case would totally circumvent this fundamental and overriding principle.”

The Crown launched an appeal against the decision, arguing that the circumstances of the case were not so extreme, exceptional or rare to warrant the application’s refusal.

However, Sir Christopher said the judge was entitled to reach the decision he did, stating that the prosecution’s case “simply collapsed”.

He wrote: “Whilst some cases fail because the main witness does not come up to proof, it is exceptional for a case to fail as comprehensively as this one, and most unusual for the DPP to enter a nolle prosequi as the case collapses in order to retain the opportunity of having a second bite at the cherry rather than letting the criminal process run its course.”

In addition to the 12-month time limit, Sir Christopher noted that no attempt had been made to restore the proceedings and the DPP did not seek to set aside the not-guilty verdict.

He said: “In those circumstances, the effect of acceptance of the nolle prosequi, which does not establish innocence of the defendants, would, in all probability, have been that the defendants would have been deprived of the ability to secure a not-guilty verdict despite the fact that the evidence was wholly insufficient to justify a guilty verdict against any of them.”

Sir Christopher said it would have been an abuse of process to accept the nolle and dismissed the Crown’s appeal.

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