Part 1 of this commentary was published on Wednesday, March 20.
At least one commentator in publication in The Gleaner, as recently as Sunday, March 17, 2013, relied on the English case of Toulson, urging the director of public prosecutions (DPP) "to use the law to get the video evidence admitted". I was quite surprised at the use of this authority, since it was an English case decided in the year 1896 which dealt with still photographs, when a video recording by cellular phones was not even a concept, let alone in existence.
Having established the threshold that is to be met and cognisant of the absence of the maker of the video, Crown counsel, in pre-trial interviews of the police officer and witnesses who were on the scene, asked questions of the, witness to ascertain whether they could accurately corroborate the narrative as depicted on the video.
The police witness was quite clear that, at the time his colleague discharged his weapon, his back was turned and he, therefore, did not witness the actual shooting.
The civilian eyewitnesses, who stated that they saw when the accused Detective Sergeant Lloyd Kelly discharge his weapon, outlined a narrative that directly contradicted the events on the videotape. They maintained that the now-deceased Ian Lloyd was throwing stones and bottles at the accused which caught him on the chest, groin and face just before he discharged his weapon.
Therefore, we were unable to authenticate the video based on the eyewitness evidence which was available to the Crown. At trial, the eyewitnesses on oath reiterated this particular stance, and my information is that they even enlarged the stones that were in the hands of the deceased. Additionally, they went further to say they did not even see when Det Sgt Kelly discharged his weapon.
The ethics of a prosecutor do not allow us to do anything other than to place the available evidence before the court. We are not telepathic or in control of what a witness is going to say in court. We are dealing with human beings who have minds of their own, and it was quite clear that Det Sgt Kelly was popular within the community of Buckfield and that Mr Lloyd, who the police were trying to capture, was alleged to have just murdered an elderly woman of the community.
The prosecution's case will only be as good as the quality of the narrative outlined by eyewitnesses and the other evidentiary material available.
In the instant case, there was no need for Det Sgt Kelly to have tested his assertion of self-defence, as all three witnesses called by the Crown were consistent in their evidence that, at the time that he discharged his weapon, he was under sustained attack by Mr Lloyd, who threw stones and bottles at him, hitting him in the groin, chest and face.
Only the admission of the video evidence would have put us in a position to negative self-defence on our case. Regrettably, the maker of the video did not make himself known; nor did the efforts made result in this person being unmasked. Let me restate that the DPP's office is not an investigative authority. We have no other choice but to depend on the police investigators to find witnesses.
The trial judge, as a matter of law, was, therefore, obliged to uphold the no-case submission.
This case is not without lessons to all of us who are interested in the administration of justice. It underscores the need for the independent investigation of police shootings from the very onset so as to safeguard and protect the collection of evidence and the chain of custody.
However, the recent case of the R v Rushon Hamilton, which saw the conviction of a police officer for the murder of a 14-year-old girl whose body was never found and where post-mortem evidence was not, therefore, relevant, gives credence to the fact that the police can investigate their own and, with courageous witnesses giving evidence, the Crown can obtain a conviction.
There is also the need for the Parliament to promulgate and pass laws that allow for the admission of a post-mortem report similar to Section 50 of the Evidence Act, which allows for the admission of medical evidence without more, that is, within the Resident Magistrate's Court. This amendment ought to include matters dealt with at the Supreme Court. In the alternative, allowance could be made legislatively for post-mortem reports to be admitted into evidence with the consent of the prosecutor and defence.
Our inability to adduce the video evidence, which is 'clear as day', if we accept that it is unaltered, draws attention to the need for our citizenry to play an active role in the administration of justice beyond the mere expression of public outrage, that is, to make themselves known and available to give evidence when called upon so to do, in the public interest.
It is unfortunate that this matter, as discussed in the public domain, has suffered from uninformed commentary. The prosecution of any case has to be within the context of the law, prosecutorial best practices, as well as ethics, and must transcend petty-mindedness as well as prejudice or sympathy for any party in this matter.
In the final analysis, each case has to be assessed on its own particular merits and the relevant law. The prosecutorial authority which I head welcomes constructive criticism and will always strive to facilitate clarity in the public interest.
It must, nonetheless, still always be remembered that a prosecutor's case is only as good as the quality and cogency of its witnesses who make themselves available to give that evidence.
Paula V. Llewellyn, QC, is director of public prosecutions. Email feedback to firstname.lastname@example.org.