Prosecutors have failed in their bid to overturn a trial judge’s decision to direct a jury to acquit a lawyer accused of perjury and fabricating evidence.

Kamal Worrell was alleged to have arranged a meeting with a prosecution witness in a shooting trial in September 2014 and tried to get him to change his story to ensure his client was cleared.

At the end of the defence case and after Mr Worrell had given evidence to deny the charges, Puisne Judge Charles-Etta Simmons ruled he had no case to answer and discharged him.

The Department of Public Prosecutions appealed against the judge’s decision.

However, the Court of Appeal has dismissed the DPP appeal, although the bench questioned how appropriate it was for a defence lawyer to meet with a prosecution witness.

In their ruling released yesterday president Sir Scott Baker said: “Quite apart from the question of criminal liability, two question arise that are worthy of comment.

“First, should the meeting of September 14, 2014, have taken place at all and second was the discussion permissible? Paragraph 58 of the Code as drafted covers only a witness in the course of giving evidence.

“It does not, at least on literal interpretation, cover a witness who had given evidence in an earlier trial and is expected to give evidence in re-trial.

“It seems to me that the ambit of paragraph 58 could usefully be considered by the Bar Council.”

The president of the Court of Appeal added: “On the second point, the English Court of Appeal made clear that training and coaching witnesses in criminal proceedings is not permitted and that this is the logical consequence of the well-known principle that discussion between witnesses should not take place and that statements of proofs of one witness should not be disclosed to any other witness.

“I do not think the position is any different in Bermuda.

“Even on the most innocent interpretation what occurred at the meeting on September 14, 2014, seems perilously close to having breached this principle, if not having crossed the boundary.”

The Court of Appeal said it was “unusual” for a judge to stop the case at the close of the defence evidence “particularly having ruled there was a case to answer”.

“But it was one that was open to the judge and indeed something she was required to do in appropriate circumstances,” the judgment stated.

Referring to Puisne Judge Simmons’s decision to discharge Mr Worrell, the Court of Appeal president added: “In my judgment the judge was correct in her approach and contrary to the submissions of [the prosecutor] did not trespass across the boundary into assessing the credibility of the respondent’s [Mr Worrell] evidence.”

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