Where a retrial application rests on a final judgment proving the crime, what can be done when that judgment cannot be obtained?
General information · Not legal advice
Material to check
In a practice file of this kind, we read the retrial application to see which final judgment it relies on, any paper showing what the applicant did to obtain that judgment and why it could not be had, and the evidence the applicant offers in its place.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading follows the provision as written: where a party intends to rely on a final judgment establishing the crime as a ground for retrial, and that judgment cannot be obtained, the party may prove that fact by other means and still make the retrial application, so the missing judgment does not by itself defeat the application.
Another reading takes the proviso seriously: where the final judgment cannot be obtained because there is no evidence for it, the substitute-proof route is excluded, and the provision says nothing about what standard of proof the substituted evidence must meet or how the reason for non-availability is to be shown.
Your judgment
How should the file show whether the judgment is unobtainable for want of evidence, or for some other reason that the provision leaves open?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to define what counts as obtaining a final judgment or to set the standard for the substituted proof, or if a court decision addresses the proviso's exclusion.