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Aug 1, 2001

Hertular trial goes to Supreme Court

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The trial of Hadrian and Robert Hertular resumed this morning with new defence attorney Dean Barrow making an application to stay the trial. Barrow says for Chief Magistrate Herbert Lord to continue with the proceedings would be a breach of the defendants’ constitutional rights.

Dean Barrow, Hertular Attorney

“In the written ruling that Mr. Lord made, deciding that the statement would go in, he went beyond that narrow issue as to whether the statements should be admitted. That turns on whether the statements were given voluntarily, or whether they were extracted by force. He ruled that not only were the statements to go in, but that he had found as a fact that the defendants had made those statements, had uttered those words. The law is quite clear, a defendant can say, “guess what, I didn’t make the statements at all, but at the time you are alleging that I made the statements, I was under pressure.” So the court would have to decide whether if I made the statements I was under pressure. But that is all the court is to decide at that stage. Because Mr. Lord went further in my submission, and decided not that if the statements were made, they were made voluntarily, but that the statements were made, he in fact moved pre-emptively and has now deprived the defendants of a chance of having that issue determined when it ought to have been determined, which is at the end of the whole trial. In other words, had he not made that decision, they would have been entitled to lead evidence, not in the trial within a trial, in the main trial to show that they had not in fact made the statements. But I am submitting that that would be pointless now and would be a travesty because he has put in writing that he has determined that issue in advance of hearing all the evidence. So I’m saying you have therefore denied them the opportunity to present to you the sort of evidence which might have caused you to rule on that issue at the end of the day in a way favourable to them. You therefore can’t continue with the trial, you must either send it to the Supreme Court for determination as to whether the trial should be halted completely and the two men set free, or whether it should be started de novo.”

Since Lord didn’t want to take the decision himself to stay the trial and therefore discharge Hadrian and Robert Hertular, he has agreed to send it to the Supreme Court. The new trial date is yet to be announced.

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