LAWYERS' MOOT - DPP bungling, police lying or defence lawyers' ambush caused alleged gunman to beat shooting rap
Barbara Gayle, Staff Reporter
The claim by the Office of the Director of Public Prosecutions (DPP) that it was ambushed by the defence at the trial of Leighton 'Livity' Coke has been brushed aside by defence lawyers.
The DPP's office has argued that by presenting expert witnesses without prior notice to the prosecution, the attorneys representing Coke unfairly conducted the trial by ambush.
But several lawyers from the private bar have rubbished the claim while noting that the defence does not have any legal right to make disclosures to the prosecution as to the way in which it is presenting its case.
"The law places no obligation on the defence to make such a disclosure," says attorney-at-law George Soutar, president of the Advocates' Association of Jamaica.
According to Soutar, if a defence lawyer makes such a disclosure, it would only be at the discretion of the defence.
DPP Paula Llewellyn, QC, has a different view on the issue.
For quite some time, she has been calling for the law to be amended to give the Crown right of appeal.
"The concept of fairness should not only be for a defendant but should also embrace the victims, witnesses and community at large.
"The identity of the accused is irrelevant. I am talking about best practices that enhance the administration of justice and the public at large," Llewellyn emphasised.
But Coke's lawyers Carolyn Reid Cameron and Chukwuemeka Cameron, who were instructed by attorney-at-law Priya Levers, said it was misleading and unfair to say that Supreme Court judge David Fraser relied only on the evidence of the expert witnesses in coming to the not guilty verdict.
"The judge cannot take responsibility for the prosecution not doing its work. The judge found that the Crown witnesses were not reliable and there was a failure on the Crown to prove its case beyond a reasonable doubt," the attorneys argued.
The defence lawyers pointed out that from the first day of the trial it was disclosed that men had fired at the police vehicle but the wrong vehicle was photographed.
They said one of the witnesses said he knew Coke but had identified Coke's cousin in a photograph to be Coke.
According to the defence lawyers, the witnesses were discredited during cross-examination and the identification was flawed.
They stressed that the surveyor took measurements and made a sketch based on the statements given by the prosecution witnesses as to where the men were when they were allegedly shooting and where the members of the security forces were
"So it cannot be said that the prosecution was ambushed," said one lawyer
Evidence was given at the trial that Coke and a group of men fired at members of the security forces between 11:30 a.m. and midday on May 24, 2010.
The police had gone into west Kingston to search for Coke's brother, Christopher 'Dudus' Coke, for whom they had a warrant for his extradition to the USA.
After he was extradited, he pleaded guilty to charges of assault and racketeering but has not yet been sentenced.
'Livity' was freed of charges of illegal possession of firearm and shooting with intent at the end of a lengthy trial in the Gun Court.
Three policemen had testified that during the unrest in west Kingston in May 2010, Coke was one of a group of men who fired at members of the security forces.
But a land surveyor testified that he visited the area, took measurements and prepared a sketch which revealed that the location where the witnesses said Coke had fired from was more than 390 feet and not 30 feet as the policemen had testified.
difficult to identify
An ophthalmologist said it would be challenging and difficult for the naked eye to identify someone beyond a distance of 150 feet.
Llewellyn said when the defence was going to use expert witnesses then "the rules of fairness dictates that this be disclosed in a timely manner to the prosecution so we can know what we are to meet and can consult with the expert".
Llewellyn referred to a case which was decided by the Caribbean Court of Justice (CCJ) and said "this case exemplifies judicial recognition of the highest level of the obligations of the defence to disclose expert reports they intend to rely on to the prosecution within a minimum of 20 days before the trial".
She said it would enable the prosecution to consult with its own expert and also to get further instructions from its witnesses.
"In some instances, it could save judicial time as we could opt to discontinue the case if our expert agrees with the defence's expert" said Llewellyn.
"It is imperative that these best practices are observed as the Crown does not have a right of appeal from verdicts or during the course of a trial if the ruling of a court on a matter of law or procedure is adverse to the Crown.
"This is in the spirit of fairness because the pendulum of justice must swing both ways for the prosecution and the defence; it cannot only be stuck in favour of the defence.
The CCJ case which Llewellyn was referring to was the Barbadian case of Frank Errol Gibson against the attorney general in which the CCJ law lords held that, "we adjudged that the defence was not obliged to disclose the contents of any report from the expert if the latter was not going to be called to give evidence at the trial.
"But we decided that if the defence proposed to call the expert to give evidence, then the defence was obliged to share his/her report with the Crown."
Llewellyn has made a special appeal for lawyers at the private bar to heed the judgment of the CCJ in the interest of justice and fairness.