By Paula Llewellyn, Guest Columnist
Having received a comprehensive written report from the Crown counsel who prosecuted the Lloyd Kelly case, I now outline a chronology of events along with a discussion of what occurred in court and the relevant case law in an effort to bring clarity to the issues which have found its way into the public domain.
A cell phone-recorded video aired on the local television stations sometime at the end of July 2010 depicted images of a Jamaican police officer, Det Sgt Lloyd Kelly, firing his gun at Ian Lloyd, who was on the ground throwing a small missile at the same police officer. The incident occurred on July 29, 2010 in Buckfield, St Ann.
Mr Ian 'Chen-Singh' Lloyd succumbed to gunshot injuries and there was a massive hue and cry from the public in respect of the video. Statements were compiled from other individuals at the scene during an investigation conducted by the Bureau of Special Investigations (BSI). The maker of the video did not provide a statement and did not make himself known to the prosecutorial authorities.
The statements, along with a post-mortem report, were sent to the Office of Director of Public Prosecutions (ODPP) for a ruling. It must be stated categorically that the ODPP is not an investigative entity. We depend on the police investigators and INDECOM investigators to find witnesses.
Having reviewed the material on file, including viewing the video recording, I ruled on August 5, 2010, inter alia, that Det Sgt Kelly be charged with murder. This four-page ruling made it very clear to the police authorities that given the very nature of the particular case, it was critical that the maker of the video be found and a statement taken from him. This was very important in light of the fact that the statements of the eyewitnesses were favourable to Mr Kelly, a popular police officer in Buckfield, and in marked contrast to the video.
Evidence in Court
The matter had spent some two and a half years on the trial list. The accused is entitled to his day in court and was pressing for the trial of the matter. The prosecution cannot hold back a matter indefinitely in order to find a witness. It must be remembered that the prosecutor cannot take its case any higher than the witnesses who are giving evidence.
Ethically, the prosecutor's duty is to present all the available relevant evidence. The test for the admissibility of evidence is relevance. Anything that is said outside of the witness box or a video image is not evidence for the purposes of the court unless it passes the legal test of admissibility. The court, therefore, can only take account of evidence in court which has passed the legal test of admissibility.
GAP IN CHAIN OF EVIDENCE
Two bullets were removed from the body of the deceased, Mr Lloyd, one of which matched the firearm carried by Detective Sergeant Lloyd Kelly and the other which is said to have been lodged in the body of deceased arising from an earlier and unrelated incident.
The bullets in question were retrieved by the pathologist and given to the colleague officer of the then accused Mr Kelly to be taken to the Ballistics Laboratory for testing. This officer did not mark the bullets, as is the practice, and while he said that he marked and labelled the envelope in which these bullets were submitted to the laboratory, this was not reflected in his statement on the file.
An attempt was made by Crown counsel to address this lacuna by instructing that the bullets which were submitted to the lab be located and handed over to the Crown. The investigating officer, after making checks, reported that these bullets contained in an envelope said to have been labelled and sealed could not be located.
There are three options which would facilitate the introduction of the post-mortem evidence which basically establishes the cause of death of the deceased:
Death can be inferred from the circumstances (no post-mortem report or pathologist evidence would be required);
The consultant pathologist would give evidence on oath in court reflecting the content of his previous post-mortem report; and
The use of the Evidence Act Section 31D (c), which allows the post-mortem report to be admitted into evidence if certain legal criteria have been established evidentially.
In the case at bar where the cause of death was simply death by gunshot injury, the Crown found it appropriate to use Section 31D (c).
Section 31D (c) of the Evidence Act provides, inter alia, as follows:
"Subject to Section 31(G), a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if it is proved to the satisfaction of the court that such person:
... c) Is outside of Jamaica and it is not reasonably practicable to secure his attendance;
The Crown called the custodian of the Immigration Department and a high official at the Ministry of National Security to establish that Dr Rao, an Indian national, was outside of the jurisdiction. The learned trial judge found that she was not satisfied that in all the circumstances 'reasonably practicable' steps were taken by the Crown to secure Dr Rao's attendance. The budgetary constraints of the Government have been a great factor preventing the facilitating of doctors returning to give evidence.
In our view, even if the post-mortem report had been admitted, or Dr Rao had given evidence that the cause of death was caused by gunshot injury, that could not have made a difference in the outcome of this matter, since it was not in issue that Det Sgt Kelly shot Mr Lloyd. The issue was whether Kelly had any lawful justification, that is, he was not acting in self-defence to use deadly force on Mr Lloyd in the way depicted on the video image. It was the Crown's duty to prove the case against the accused beyond a reasonable doubt.
Up to the time of trial, police investigators had indicated that they had not been able to obtain the name and address of the person who videoed the shooting of deceased Mr Lloyd. In the case preparation by Crown counsel, questions were asked of the prosecution witnesses whether they knew the name of the person. The resounding response has been: "Mi nuh know a who video it. If dem did wan yuh know dem wouldha come tell yuh!"
Realising that we could not identify and locate the maker of the video, we looked carefully at the case law to see if there were any alternative means to have such critical evidence adduced in court.
In the R v Nikolovski  3 S.C.R 1197, where the issue of admissibility of video evidence was central to the case, the Supreme Court of Canada held that:
A video camera records accurately all that it perceives and it is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, it becomes admissible and relevant evidence.
The Crown, therefore, has to prove the provenance and authenticity of the video recording, that is, that it was not altered, and that it depicted the scene of the crime truthfully. Though it was shown on television and YouTube, it is not evidence for the purposes of the court unless it is admitted into evidence in court according to law.
This case was adopted in the local case of the R v Lynden Levy et al SCCA Nos 152, 155, 156, 157 and 158 of 1999. Judgment delivered May 16, 2002. In this case, six men were convicted on the strength of videotape evidence which was authenticated by two kidnapped teenagers who were assaulted and raped by the men. The video was authenticated by the two teenage girls who were able to outline exactly what had occurred and their evidence depicted accurately what was on the video before the video was admitted into evidence through them.
The videotaping was done by Mr Levy, for the most part, except for when he was sexual assaulting these girls. Thereafter, the girls were able to point to the images on the video and identify the accused, their body parts, and themselves on the video that was now in evidence. I know this case well since I prosecuted it at first instance and appeared for the Crown on appeal and the convictions were upheld.
Paula Llewellyn is director of public prosecutions. Email feedback to email@example.com. SEE PART TWO IN THURSDAY'S GLEANER.