Fri | Aug 18, 2017

Setting my misguided critics straight

Published:Monday | March 21, 2016 | 3:00 AM
Paula Llewellyn

I refer to the recent Gleaner article titled 'Abuse of power? DPP under fire for stopping trial before judge could rule on no-case submission' (March 13, 2016) and letter to the editor by Dujon Russell (March 17, 2016) treating with the same subject matter.

The basis of my decision has benefited from a detailed report from the assistant director of public prosecutions, who had conduct of this case. This matter involved allegations of breaches of the Law Reform (Fraudulent Transactions) (Special Provisions) Act 2013 (popularly called lotto scam legislation).

The allegations are that a male person was seen in an ABM by police personnel who were on patrol in a particular area between 4 a.m. and 4:30 a.m. The further allegation is that the male person had a white towel over his head, which drew the attention of the police, who went to the ATM and held the person.

When searched, he was allegedly found in possession of more than 30 cloned debit and credit cards and a number of receipts that matched some of the card numbers, as well as $150,000 in cash. This male person, along with the towel, cards, receipts and cash, was removed by the police and taken to the police station where he was placed in custody. He was subsequently arrested and charged.

The prosecution always has the legal duty of disclosure. Before the case commences, we must serve counsel for the defence with all of the material we intend to rely on to prove our case, as well as any other material that may have come into our possession in relation to this case which may be relevant. Defence counsel who has received this material has no similar duty of disclosure to the prosecution.

However, having read the material that the prosecution has served on them, and being privy to instructions received from their client if there is other material they would deem necessary for the defence of their client, they are at liberty to make a request of us to source that material if it exists.

In this case, the prosecution duly served the statements of witnesses, video footage and still images relative to the time 4 a.m. to 4:30 a.m. from the ABM on defence counsel Hensley Williams. Up to the commencement of the prosecution of this case, no further request was made by defence counsel, whether verbally or in writing, for us to source any additional video footage. Indeed, even when the Crown called its ninth and last witness, no such request had been made.

 

A VERY STRONG CASE

 

After the prosecution closed its case and during defence counsel's no-case submission, he indicated that he had not been served with the other 231/2 hours of video footage he says would benefit his client's case. Although the prosecutor indicated the irrelevance of this material and the impossibility of sourcing this material at that time, Mr Williams still maintained that based on the defence, he would wish to have sight of the 231/2 hours of activity in that said ABM.

The prosecution considered this to be a very strong case in light of the sequence of events previously outlined. Clearly, the other 231/2 hours would not be relevant in proof of this case against this individual as it pertains to clients of the financial institution on their lawful and personal business.

To source that sort of material involving citizens, in such a case where it is clearly irrelevant, may necessitate the prosecution or the defence getting a court order compelling the financial institution to provide this footage, if it still exists, which could take several months.

I accepted the assistant DPP's recommendation that the interest of justice would be best served by entering a nolle prosequi, which would pause the matter for it to be recommenced after we have made every attempt to source the material to assist the defence.

This power to enter a nolle prosequi is a quasi-judicial function of the DPP under the Constitution and the Criminal Justice Administration Act and is always subject to judicial review by anyone who disagrees with this decision or who has been negatively affected. In a given year, I consider and make decisions for up to 600 requests islandwide from defence and prosecuting counsel from all the courts.

In Sunday's publication, defence counsel indicated that no explanation was given to him or the accused as to the reason for stopping the case. Both the assistant DPP and I were absolutely shocked by this statement, which is totally contrary to what actually occurred. The assistant DPP consulted with both Mr Williams and the judge in chambers, outlining the prosecution's reasons for entering the nolle prosequi. The judge had no issue with this proposed course and appreciated our position.

• Paula V. Llewellyn, QC, is director of public prosecutions. Email feedback to columns@gleanerjm.com and paula.llewellyn@moj.gov.jm.