By Gordon Robinson
At any criminal trial, the prosecution's obligation is to prove two limbs of each charge beyond a reasonable doubt.
These are actus reus (the physical act) and mens rea (the intention to act, o/c 'criminal intent'). If the prosecution becomes aware, from whatever source, that an accused citizen intends to explain his actions by way of specific allegation which, if true, might compromise a magistrate's ability to find the requisite criminal intent, it's the prosecution's duty to adduce, at trial, any available rebuttal evidence.
The layman's legal authority (NBC's Law and Order) says: "In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders." As one of 'the people' so represented, I demand that the two groups work together in my interest.
So, for example, if:
1. A citizen is accused of corruption by interfering with police trying to quash a traffic ticket;
2. The accused citizen warns the prosecution, whether directly or inadvertently, 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, in whose name the prosecution is brought.
DERELICTION OF DUTY
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.
The first error such a DPP would be making is to anticipate a magistrate's ruling on an objection at trial without using a functioning crystal ball. What is the DPP's Plan B if the magistrate disagrees and allows the accused citizen to give the 'hearsay' evidence? Appeal? That would be a waste of time and public resources. Take out judicial review proceedings against the magistrate? That would be an abuse of the court's process. Why tempt such a legal kerfuffle rather than simply asking the commissioner to testify?
At the very least, I believe it's the prosecution's solemn duty in this type of situation to obtain a statement from the commissioner. And it's the solemn public duty of the commissioner to give one. The result will either be that the accused's allegation is confirmed or contradicted. If it's confirmed, it'll be exculpatory evidence that the prosecution must use or make available to the defence. If it's contradicted, it'll be important evidence assisting the prosecution to discharge its onus of proving mens rea.
So why would a DPP act in this way with advance warning of the accused's defence? Why take this highly risky course of action? Why, in the rush, throw a senior deputy DPP under the bus so publicly?
What's this? Law and Order dubwise?
FORMAL STATEMENT NEEDED
As one of 'the people' represented, I'm demanding that my police commissioner immediately give a formal statement regarding the accused's public allegation of the commissioner's involvement in the matter. I demand the DPP review that statement BEFORE deciding whether to call the commissioner, or if he should be made available to the defence. In these circumstances, the DPP could also consider withdrawing what the public must infer is public chastisement of a deputy DPP for doing his job.
The only situation in which any policeman would be entitled to remain silent is if he is himself suspected of criminal involvement, and NOBODY has made this allegation. If he's suspected, he must be warned like every other citizen, at which time he'll be fully entitled to remain silent. If not, he must unhesitatingly assist both arms of the criminal justice system.
Both my representative groups must leave no stone unturned in this prosecution. If the accused persons are guilty, I want them convicted. No dubwise 'Law or Order', please.
Peace and love.
Gordon Robinson is an attorney-at-law. Email feedback to firstname.lastname@example.org.