Barbara Gayle, Staff ReporterTHE COURT of Appeal yesterday ordered a new trial for a 40-year-old minibus operator, saying 'numerous interventions' by the judge worked against the defendant receiving a fair trial in the Gun Court in July 2002.
It was the court's ruling that Mr. Justice Howard Cooke's behaviour in the trial of André Wynter, minibus operator of Apartment 10, 4 Devon Road, Kingston 10, resulted in a miscarriage of justice.
There have been several appeals within the last three years in which the Court of Appeal had to order new trials or free the accused because of the said judge's interference that the court found to be prejudicial to the accused persons.
Mr. Justice Cooke was promoted to the Court of Appeal Bench in April this year.
UNFAIR MANNER
In January, Mr. Justice Cooke was criticised by the Court of Appeal for the unfair manner in which he conducted the trial of Kingston businessman, 51-year-old Eric Smith. "The trial was not fair to the applicant and the convictions cannot stand," the court said when it freed Smith, who was convicted and fined for illegal possession of firearm and wounding with intent. Mr. Justice Cooke convicted Smith after he found that he used his licensed firearm to shoot and wounding a man.
The court found that of the 192 questions posed to the complainant during the trial, the judge had asked 161.
The court held in Smith's case that the extent of the judge's interruptions, which had nothing to do with clarifications, was to be regretted.
Smith's case was the third such one within a six-month
period in which appellants were set free because of Justice Cooke's interference during the trials. In July 2003, 45-year-old District Constable Leonard Coley who was sentenced in 2002 to four years imprisonment for rape was freed because of numerous questions asked by Mr. Justice Cooke, some of which were prejudicial to the defence.
After hearing evidence at Wynter's trial in July 2002, Mr. Justice Cooke convicted him of charges of illegal possession of firearm and ammunition and sentenced him to seven years' imprisonment at hard labour.
IMPORTANT ASPECTS
Attorney-at-law C. J. Mitchell, who represented Wynter on appeal, submitted that the judge took over the role of the prosecutor. Mr. Mitchell argued before the Court of Appeal comprising Mr. Justice Paul Harrison, Mr. Justice Clarence Walker and Mr. Justice Karl Harrison (acting), that Mr. Justice Cooke intervened in the examination in chief of the main witness of fact for the Crown, and in such particularly important aspects of the evidence that it could be fairly and properly said, that the judge abandoned his role as trial judge and usurped the function of the counsel for the Crown.
Mr. Mitchell pointed out that of a total of 76 questions put to the witness for the Crown, Mr. Justice Cooke had asked 62 of them and the prosecutor asked the other 14. He said from the number of questions asked by the judge, it was clear that the judge took over the case for the Crown and denied Wynter of having a fair trial. Mr. Mitchell argued also that during Wynter's examination in chief, the judge asked a total of 28 questions and defence counsel Dwight Reece asked 35 questions.
