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EDITORIAL - The Buckfield case and the DPP

Published:Sunday | March 10, 2013 | 12:00 AM

A court of law held Sergeant Lloyd Kelly to have been innocent of murder based on the evidence that was before it. Even with more evidence, the verdict might have been the same.

But we would not be surprised if the execution of, if not the outcome, of the case raises new questions about the competence of the State's prosecution services; and if it further shakes confidence in a wobbly judicial system and causes Jamaicans to cower more in the face of crime and perceived impunity by law enforcers.

Two and a half years ago, this appeared to be an open-and-shut case.

Jamaicans were treated to television images of Ian Lloyd, almost prone in a street in Buckfield, St Ann, surrounded by a crowd, being hit a policeman with a baton, while he occasionally, and weakly, threw stones at seeming tormentors.

In that video, shot, apparently, by someone with a mobile phone, Mr Kelly, a police detective, is seen with gun in hand. There is an explosion.

In the wake of public outcry, Mr Kelly was charged with murder, for which he was being tried last week.

Another bit of pertinent information is that the late Mr Lloyd had just, prior to the incident in that Buckfield street, been accused for murdering a 65-year-old woman. As a consequence, he was set upon by a mob. The expectation of the police in the circumstance was to arrest Mr Lloyd, while protecting him from vigilante justice.

Not-guilty verdict

Then came last week's trial and Justice McIntosh's not-guilty verdict without calling on Sergeant Kelly to provide a defence. The prosecution has failed to make a case, the judge held.

First, the video of the Buckfield incident could not be tendered into evidence because the person who shot it was not in court to certify that he did and that it had not been doctored. Dr Dinesh Rao, who performed the autopsy on Mr Lloyd, has left the job, and apparently Jamaica, and so was unavailable to provide a declaration of his belief in the truth of his report.

Further, the judge had concerns about the chain of custody of some of the evidence in the case, as well as commented that prosecution witnesses sounded as they were testifying for the defence.

The documentary evidence, against whose admittance Justice McIntosh ruled, might have been crucial.

Under Section 31D of the Evidence Act, a document is admissible in a criminal proceeding as if it was direct evidence if the court is satisfied that the person who prepared it "is outside of Jamaica and it is not reasonably practicable to secure his attendance", or, if that person "cannot be found after all reasonable steps have been made to find him".

It is reasonable to conclude that, at least in the case of Dr Rao, the prosecution did not take all reasonable steps to have him in court. So the cause of Mr Lloyd's death was not scientifically established. Perhaps it was fear that caused the person who shot the video to stay way, raising questions as to whether reasonable steps had been made to protect him/her.

The cumulative effect is this that Lloyd Kelly's argument of self-defence was not as robustly tested as it might have been.

Paula Llewellyn, the chief prosecutor, owes Jamaica more fulsome explanation than her waffle so far.

The opinions on this page, except for the above, do not necessarily reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.