Mon | Sep 25, 2017

ABUSE OF POWER? - DPP under fire for stopping trial before judge could rule on no-case submission

Published:Sunday | March 13, 2016 | 3:00 AMBarbara Gayle
Llewellyn
DPP Paula Llewellyn
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Director of Public Prosecutions (DPP) Paula Llewellyn is facing heavy flak over her decision to stop a trial shortly before a judge was scheduled to give a ruling on a no-case submission.

Llewellyn's decision has been met with sharp criticisms in legal circles, with some persons claiming that this could represent an abuse of her power.

However, the DPP has countered that her decision was made in the interest of justice when she stopped the trial in the Home Circuit Court.

She said this was done so that disclosure can be made to the defence before the start of a new trial on September 27.

"There is no way that the framers of the Constitution contemplated the use of the DPP's powers to discontinue a case in these circumstances," said attorney-at-law Bert Samuels.

He said he had discussion with defence counsel Hensley Williams, who represented the accused man in the case, and made observations.

"In my humble opinion, this amounts to an abuse of power with unfairness to the accused," Samuels told The Sunday Gleaner last week.

According to Samuels, the situation showed a lobby behind the back door to allow the prosecution to appeal in criminal matters.

Samuels explained that it was the language of the authorities that the judge should "stop the case". He explained that a judge had the power to stop the case at any stage before a verdict.

"This is a power given to our judiciary to protect a citizen from the possibility of an unfair verdict and should never be fettered by any other constitutional authority, and this power to the judiciary goes to the root of the independence of the judiciary," he said.

Attorney-at-law Hugh Wildman also questioned the actions of the DPP. He argued that the fact that the court was not allowed to rule on the no-case submission could amount to an of abuse of process.

According to Wildman, if an attempt was made to retry the accused man, then a preliminary objection could be taken that the case ought not to proceed because of the abuse of process.

Wildman said the accused could also take the matter to the Judicial Review Court on the grounds that a reindictment would amount to an abuse of process.

 

INTEREST OF JUSTICE

 

But Llewellyn explained that she entered a nolle prosequi (ending a case with the option to open a new one) in the interest of justice so that the trial can start over before another judge.

She was quick to point out that her decision was not linked to a January case before the same judge, Justice Crescencia Brown Beckford, where the judge instructed the jury to return a not-guilty verdict against an accused man.

"The fact that the judge was the same judge who, in a previous case, had stopped it, is irrelevant to my decision."

"Every case must be judged on its own merit," Llewellyn told The Sunday Gleaner.

"It is untrue to say that our decision to enter a nolle prosequi was influenced by anything else than the peculiar circumstances of this case," she said.

According to Llewellyn, she acceded to a request by the prosecutor in the case for a nolle prosequi to be entered.

"The pendulum of justice cannot swing in one direction which is towards the accused. The interest of justice embraces the interest of the community, the complainant, the accused and witnesses.

"Therefore, in my judgement, I accepted the recommendation of the crown counsel in this particular case," said Llewellyn, as she argued that she is guided by her constitutional authority and the ethics of a prosecutor.

In the January case, the judge stopped a murder trial when the accused man was about to give an unsworn statement after the Crown closed its case.

The judge sent out the jury and allowed the prosecutor, Sahai Whittingham-Maxwell, and defence lawyer Peter Champagnie to address her on the discrepancy in the evidence of the sole eyewitness in relation to two verandas.

The witness had said she was sitting on her veranda at the preliminary enquiry but at the trial she said she was sitting on another veranda.

It came out under cross-examination that the witness could not observe the shooting incident from one of the verandas.

 

SERIOUS DISCREPANCY

 

Whittingham-Maxwell argued that the issue was one of credibility which should be decided by the jury, while Champagnie argued that the discrepancy was serious and should not be left to the jury.

The judge sided with Champagnie and directed the jury to return a formal verdict of not guilty.

In the second case, Llewellyn said she stopped the trial because Williams, in his no-case submission, was saying that the Crown did not produce a videotape of the entire day's activities at the ATM where the alleged offence took place.

According to Llewellyn, since the defence was taking that view as to disclosure, she stopped the case in order to get the relevant material from the bank, although it will be a challenge to get the video since it has to do with the privacy of other customers.

Llewellyn, who for some time now has been calling for laws to be passed for the prosecution to have right of appeal, said: "The prosecution has no right of appeal in cases where there is an error of law."

She added that there are situations where the prosecution can be ambushed because the defence does not have any legal obligation of disclosure.

"After the Crown closed its case - a very strong case - it was then the lawyer ambushed us and indicated that he wanted disclosure of all the video footage in the possession of the bank," said Llewellyn.

She argued that the video footage was not relevant to the case and if the request had been made before the Crown closed its case, then an application could have been made before the judge for the financial institution to release the videotape.

But Williams countered as he argued that, "The prosecutor ignored the testimony under cross-examination that the tape existed in the archives of a financial institution, which captured the day's activities at the ATM."

He charged that it was when the revelation was made in court that the prosecutor should have asked for an adjournment to get the tape and then make late disclosure to the court and the defence.

According to Williams, in making the no-case submission, he argued that his client should be freed because his constitutional right to a fair trial was breached, because the prosecutor ignored the evidence that the videotape was available and knew that it was not disclosed to the defence.

"No explanation was given to me or the accused as to the reason for stopping the case. I was in court waiting for the judge to come in to make her ruling on the no-case submission and all I was confronted with is a document halting the proceedings," charged Williams.