SLAPDASH PROSECUTION

What does the DPP’s office intend in the infamous Vaz/Bicknell/Forbes prosecution?

Is the DPP’s objective to obtain a conviction?  Does she consider it her public duty to place before the court all the relevant and available evidence?

In a recent column [Law and Order (Dubwise?); September 11, 2012], I opined”

if:

           1. A citizen is accused of corruption by interfering with police…;

          2. The accused citizen warns the prosecution…… that he alleges his                                                                                    actions were sanctioned by the police commissioner, this ought to                                                                                                     raise bright red flags in the director of public prosecutions’ (DPP)                                                                                                        office because, if it’s true, then proving, beyond a reasonable doubt,                                                                                                    that the citizen intended to do something criminal would be                                                                                                     impossible. Any citizen can be excused for believing that actions                                                                                                 approved by the police commissioner weren’t criminal. Any prosecutor                                                                                          then awaiting receipt of a statement from the    commissioner before                                                                                            proceeding to trial would be a prudent prosecutor executing his                                                                                                     solemn duty to the Jamaican people…….

I pointed out that, in this very high-profile case, the D.P.P. acted contrary to my idea of her “solemn duty” by publicly over-ruling her junior colleague.  I wrote:

But, in my opinion, should the DPP then take a contrary course and                                                                               announce to the court before trial, before even receiving the statement,  that the commissioner won’t be called, that DPP would be derelict in his duty to the Jamaican people. If the DPP were to base this decision on an assertion that any attempt by the accused citizen to make his  allegation at trial would be inadmissible for hearsay, in my opinion, the DPP would be taking an unnecessary risk based upon an unsound view of the law and weak legal strategy.

Apparently, Jamaicans aren’t interested in following up this unusual exercise of discretion by the D.P.P. nor does the D.P.P. herself consider it important enough to explain her actions to the public she represents.  I asked several questions based on my above opinion.  None has been answered.  The young prosecutor, thrown under the bus by the DPP’s public rebuke, must be living in mortal fear of police retaliation to the unmistakeable signal that he’s against the police.  The average policeman would be justified, in the circumstances, for concluding that young prosecutor was unnecessarily pressuring the Commissioner to join the fray.

The sole online comment criticised my legal view as follows:

Are you suggesting the Police Commissioner can instruct someone                    to commit a crime and that person wouldn’t be responsible. Police                 officers are trained and know right from wrong if the Police                         Commissioner ordered an officer to commit a crime then surely they                 would both be guilty

You misread me sir.  Nobody alleges it’s a defence that the Commissioner instructed you to commit a crime.  I’m saying the prosecution must prove the accused citizen intended to commit a crime.  If one tells the Commissioner what one intends doing and the Commissioner says ‘go ahead’ surely one would be justified (based on your principle that “Police officers are trained and know right from wrong”) in claiming one was unaware that it was a crime and one certainly didn’t INTEND to commit a crime.  Surely one can say “If the Commissioner had said ‘don’t do that; you’ll be breaking the law’ I’d never have done it.”  It must be at least an arguable defence to the mens rea limb of the charge.

In a frenetic over-reaction to my insistence that the D.P.P. do what’s necessary to present all the available evidence rather than presume how a court will rule; that the Commissioner give a statement, lots of couch lawyers advised me to buy a law licence and that my articles were “flawed” and exhibited “a certain political leaning”.  Which way?

So here’s a true story.  On August 11, 1992, Franklyn Street was attacked at his home in Coconut Grove, Ocho Rios.  Franklyn, his wife, their two grand-children and one great grand-child were peacefully at home shortly after 8.00 p.m.  The children were in their room watching TV.  Franklyn’s wife was sewing.  Franklyn went to his room situated to the back of the house.  He’d left the room door ajar to benefit from the evening’s cool breeze.  His wife later testified she heard him call out; heard a “tumbling down” noise; and rushed to his room to find a man (who she later identified as Esmond McKain) viciously stabbing her husband.  She alleged McKain reached across Franklyn’s body and stabbed her as well.

Franklyn and wife were taken to hospital where Franklyn died.  McKain was charged with capital murder.  At the trial, McKain testified he was at The Roof Club in Ocho Rios at the time of the attack.  He said that, while at the club, a policeman he knew before, Detective Corporal McDonald, stepped on his toe as a result of which they had an altercation.  After the Defence’s case closed, the prosecution sought leave to call Corporal McDonald to rebut the Defendant’s evidence and was granted leave over the Defence’s strenuous objections.  McDonald then testified that he’d been at the Roof Club that night; he’d known McKain for about 5 years; but didn’t see him at the Club that night.  McKain was convicted.

On Appeal, Forte JA (as he then was) in delivering the Court’s judgment overturning the conviction, held (1994) 47 WIR 290, 299;

…the prosecution may be allowed to call evidence                                                                                                                        at the discretion of the trial judge after it has closed                                                                                                                                              its case in the following instances:        (1)     where the                                                                                                                           evidence arises ex improviso [i.e. unexpectedly;                                                                                                                                     suddenly];  (2)     to adduce evidence which is a mere                                                                                                                    formality;   and (3)        in very special circumstances,                                                                                                                             which must be decided in the context of the particular                                                                                                                              case, such circumstances naturally occurring on the                                                                                                                                       rarest of occasions.”

The problem was the alibi evidence didn’t arise “ex improviso” because, in cross-examining the investigating officer, Defence Counsel had given notice of the Defence to come.

Question:   And that when you told him on the 15th, at the Ocho Rios                  police lockup, he was being held for the murder committed on Tuesday      ……..he then told you that he was at the Roof Club that night…..

Answer:     No Sir

Question:   ….and that you could ask Police Officer McDonald who was               there…

Answer:    No Sir.

Question:  ….because Officer McDonald would tell you that…

Answer:    No Sir

Question:  … and he told you the same thing on 17th August when you               came to the Ocho Rios lockup.

Answer:    No Sir

Question:  ..and he told you the same thing again on 19th August….

Answer:    No Sir

Question:  …when you charged him….

Answer:    No Sir”

The Appeal court held that none of the exceptions existed.  In particular, the evidence didn’t arise ex improviso because “the evidence was disclosed as a result of the cross-examination of counsel for the defence who was deliberately seeking to adduce the evidence as part of the defence.” (p.299)

As soon as the Prosecution saw where the investigating officer’s cross-examination was going, its obligation was to call Officer McDonald immediately to close that hole through which the defendant had signalled his intent to wriggle.  In the Vaz/Bicknell/Forbes fiasco, the prosecution already knows, long before trial, that an accused is going to allege, in his defence, that he had an exculpatory private conversation with the Commissioner.

Does the DPP know that, if she doesn’t immediately ask the police to investigate this allegation; then re-assess her position; it’ll be too late after the Accused testifies at trial?  She should know because this fundamental legal principle is taught to Norman Manley Law School first year students.  This legal principle was obviously on her junior colleague’s mind when he told the presiding Magistrate he was awaiting the Commissioner’s statement.  At first the Commissioner made a straw man of this young prosecutor by denying he’d asked for any statement.  He later admitted, on national TV, that ACP Justin Felice asked him for a Statement but justified rejecting Felice’s request by saying no junior officer could force him to do anything.

Maybe.  But, as a public servant, especially in the crime fighting arena, if he has information relevant to a pending charge, it matters not, in my opinion, who asks him for the information.  His solemn obligation is to give that statement.  His behaviour can be likened to that of any “ghetto gal” refusing to give the police information about criminals in the area.  Ask Lady Ann:

Certain bwoy ‘pon de corner, informer
Certain bwoy ‘pon de corner, informer
‘Cause ‘im a fight ‘gains’ me an’ me lover…

Likewise, as the sole constitutional authority to elect whether or not to prosecute any individual, the DPP’s solemn obligation is to leave no stone unturned in seeking conviction of any accused citizen.  To properly discharge this duty, she must gather and present all available, relevant evidence without making unnecessary crystal ball calls.

The DPP says she considers any attempt to testify of an alleged conversation with the Commissioner to be inadmissible as hearsay.  But that’s the Magistrate’s call.  If I were the DPP, I wouldn’t be putting all my eggs in the hearsay basket so early in proceedings.  It’s like a Chess player who resigns after the first move.  How is an alleged conversation between an accused citizen and his police accusers’ agent hearsay?  Hearsay relates to statements made by persons not parties to the litigation.  Statements made by parties or their agents aren’t hearsay.  A conversation between accused/police commissioner can’t be hearsay because the Commissioner is the complainant’s agent.

Suppose the Magistrate allows the Accused to testify about his alleged conversation?  The prosecution, who hasn’t even tried to find out if the Commissioner admits or denies the alleged conversation, would be barred from trying to rebut that evidence.

Will the DPP change course from her current slapdash approach? Does she know something we don’t know?  Will she take the prudent option of basing her legal strategy on the contents of a statement from the Commissioner?  Will she take any public step to make amends for her public embarrassment and possible endangerment of a colleague who did nothing wrong?  Will the Commissioner reconsider and co-operate with the D.P.P. if asked (whether by a “junior officer” or not)?  And, what about Naomi?

Peace and Love.

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