No second trial after hung jury

THERE WILL be no second trial for a man accused of sexual assault after his first trial ended in a hung jury last month.

  • Jan. 9, 2012 3:00 p.m.

THERE WILL be no second trial for a man accused of sexual assault after his first trial ended in a hung jury last month.

Prosecutor Bill Funnell stayed the charges against Ken Barnard after applying the standards required to determine whether a second trial was justified.

The two standards are whether there’s a substantial likelihood of conviction and whether a second trial is in the public interest.

In this case, Funnell determined that because he presented all the evidence he had at the trial and it ended in a hung jury he wasn’t likely to get a conviction at a second trial.

Because the first standard wasn’t met for proceeding with a trial, he didn’t have to look at the second standard of public interest.

“If there’s not a substantial likelihood of conviction, then the public interest doesn’t come into it,” said Funnell.

“It’s considered in the light of what the result was and a hung jury is a result too and we have to have unanimity.”

Also there must be a  substantial likelihood of conviction for a prosecutors to proceed, he added.

“It means at least 50 per cent [sure of getting a conviction],” he said.

Funnell stayed the charges by filling out a form that goes to the defence as notification that the case is finished.

That form also indicates that any warrants against he accused should be dropped, he added.

Sometimes the lawyers and accused will appear in court to stay charges but it wasn’t necessary in this case.

Whether the accused can then answer no if asked whether he or she has ever been charged with a crime, assuming there’s no prior criminal record, is a difficult one.

“I know they used to ask people admitted to the bar and it’s a question employers would ask, but in a way it’s not a fair question because if you’re presumed innocent and weren’t convicted, then why do you have to keep telling people you were charged?” he said.

“Legally, it’s (staying charges) the same as an acquittal but not as good because then you could say you were acquitted and it has to be a unanimous decision.”

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