Two men, ac­cused of bru­tal­ly mur­der­ing six-year-old Sean Luke over 16 years ago when they were teenagers, will have to face a re­tri­al.

Ap­pel­late Judges Nolan Bereaux, Mark Mo­hammed and Maria Wil­son or­dered the re­tri­al for Akeel Mitchell and Richard Cha­too yes­ter­day, af­ter up­hold­ing their ap­peal over their con­vic­tions based on con­ces­sions by the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP).

At the start of the hear­ing, Deputy DPP George Bus­by said that the DPP’s Of­fice had to con­cede four of the sev­en grounds of ap­peal raised by the duo’s lawyers, based on a deep analy­sis of the ev­i­dence in the case.

“We feel that we are un­able to de­fend those grounds with the re­sult that the State has to con­cede in this ap­peal,” Bus­by said.

Bus­by ad­mit­ted that High Court Judge Lisa Ram­sumair-Hinds made sev­er­al er­rors when she presided over the duo’s vir­tu­al judge-alone tri­al last year, which re­sult­ed in a se­ri­ous mis­car­riage of jus­tice.

De­spite the po­si­tion, Bus­by sug­gest­ed that the DPP’s Of­fice was sym­pa­thet­ic to Jus­tice Ram­sumair-Hinds based on the com­plex­i­ty of the case.

“This was ob­vi­ous­ly a very dif­fi­cult tri­al and by no means was it sim­ple. One can have em­pa­thy for the task that the learned tri­al judge had to face,” he said.

Pre­sent­ing sub­mis­sions on whether the duo should face a re­tri­al, pros­e­cu­tor Sab­ri­na Dougdeen-Jaglal called on the judges to con­sid­er the “tremen­dous” pub­lic in­ter­est in the case.

“Cas­es that are known by the per­son that dies rather than the ac­cused per­sons are the ones that every­one in this coun­try re­mem­bers,” Dougdeen-Jaglal said.

At­tor­ney Jagdeo Singh, who led the duo’s le­gal team and first raised the is­sues with Jus­tice Ram­sumair-Hinds’ han­dling of the case, did not op­pose the move to have a re­tri­al.

“As of­fi­cers of the court, we can­not rea­son­ably ar­gue that there should not be a re­tri­al in the case,” Singh said.

As part of their de­ci­sion, the ap­peal pan­el or­dered that the case be list­ed for case man­age­ment be­fore an­oth­er judge on or be­fore next Mon­day.

Luke, of Hen­ry Street, Or­ange Val­ley Road in Cou­va, went miss­ing on the evening of March 26, 2006, and his de­com­pos­ing body was found two days lat­er.

An au­top­sy re­vealed that he died from in­ter­nal in­juries and bleed­ing aris­ing out of be­ing sodomised with sug­ar­cane stalk.

Cha­too and Mitchell, who is the step­son of Cha­too’s broth­er, were charged with the crime.

Dur­ing the tri­al, State pros­e­cu­tors led the ev­i­dence of teenagers Avinash Ba­boolal and Arvis Pradeep, who claimed that Cha­too had in­vit­ed Luke to ac­com­pa­ny them on a fish­ing ex­pe­di­tion.

Both Ba­boolal and Pradeep claimed that they saw Luke, Cha­too and Mitchell en­ter an aban­doned sug­ar­cane field, where Luke’s body was even­tu­al­ly found, with on­ly Cha­too and Mitchell emerg­ing.

How­ev­er, while Ba­boolal claimed that they en­tered the field on their way to the riv­er, Pradeep claimed the di­ver­sion came when they were re­turn­ing.

In con­vict­ing the duo, Jus­tice Ram­sumair-Hinds re­ject­ed a video-record­ed con­fes­sion state­ment, in which Cha­too im­pli­cat­ed him­self and Mitchell.

In the record­ing, Cha­too claimed that Mitchell, who was spend­ing time at his home, re­quest­ed that he (Mitchell) have sex with him.

Ac­cord­ing to Cha­too, af­ter he re­fused, he re­luc­tant­ly agreed to Mitchell’s re­quest to in­tro­duce him to Luke, who was his (Cha­too) neigh­bour.

Cha­too claimed that he mere­ly held Luke’s hands and cov­ered his mouth as Mitchell raped him and sodomised him with the sug­ar­cane stalk.

How­ev­er, Cha­too elect­ed to tes­ti­fy in his de­fence dur­ing the tri­al and claimed that he fab­ri­cat­ed the con­fes­sion, as he was threat­ened and co­erced by homi­cide de­tec­tives.

Cha­too de­nied any wrong­do­ing and claimed that Mitchell did not ac­com­pa­ny the group on the fish­ing trip. He al­so sought to sug­gest that Ba­boolal may have been the per­pe­tra­tor.

Pros­e­cu­tors al­so led DNA ev­i­dence which showed that Mitchell’s se­men was found on Luke’s dis­card­ed un­der­wear.

In the ap­peal, the duo’s lawyers claimed that Jus­tice Ram­sumair-Hinds did not prop­er­ly con­sid­er the le­gal is­sue of joint en­ter­prise by rul­ing out Cha­too’s state­ment, which was the on­ly ev­i­dence sug­gest­ing the role of both Cha­too and Mitchell in the crime.

They claimed that the judge should have con­sid­ered manslaugh­ter or felony mur­der for Cha­too, as the ev­i­dence did not in­di­cate that he had the in­tent to mur­der Luke or as­sist in do­ing so.

While Bus­by and Dougdeen-Jaglal con­ced­ed some of the grounds, Bus­by main­tained that Jus­tice Ram­sumair-Hinds did prop­er­ly con­sid­er Ba­boolal’s ev­i­dence and cred­i­bil­i­ty.

The ap­peal pan­el did not agree, as it point­ed out the judge failed to demon­strate how she con­sid­ered se­ri­ous in­con­sis­ten­cies in Ba­boolal’s ev­i­dence.

As they were mi­nors when they al­leged­ly com­mit­ted the crime, Mitchell and Cha­too were sen­tenced at the court’s plea­sure and were or­dered to serve manda­to­ry min­i­mum terms of 33 years and 27 years re­spec­tive­ly, when they were con­vict­ed by Jus­tice Ram­sumair-Hinds in Ju­ly last year.

If un­suc­cess­ful in their ap­peal, Mitchell and Cha­too would have been el­i­gi­ble to be con­sid­ered for re­lease in 17 and a half years and 11 and a half years re­spec­tive­ly, as the time they spent on re­mand be­fore be­ing con­vict­ed was de­duct­ed from their sen­tences.

The duo was al­so rep­re­sent­ed by Vashisht Seep­er­sad, Richard Jag­gas­sar, Alyssa Seecha­ran, Sav­it­ri Sama­roo, Vere-Marie Khan, Shane Pa­tience and Khadi­ja Sinanan.