Mon | Feb 8, 2016

EDITORIAL - Fixing the problem of absent witnesses

Published:Friday | July 26, 2013 | 12:00 AM

Recent events, this newspaper believes, provide cause for judicial - if not legislative - clarity on what comprises reasonable effort to have a witness attend court and, therefore, allowing his witness statement to be tendered as evidence.

We are drawn to the issue by this week's acquittal of murder of popular Jamaican dancehall entertainer Vybes Kartel (Adidja Palmer) and two co-accused after Justice Bryan Sykes ruled that the statements of two absent witness could not be admitted.

The basis of the judge's decision, essentially, was that the effort of the police and prosecutors to get the witnesses to court was not sufficiently robust.

There was a similar ruling in March when a seemingly slam-dunk case for the prosecution ended with the acquittal of Sergeant Lloyd Kelly, who was captured on video, apparently shooting dead an almost prone Ian Lloyd.

In that case, two crucial pieces of what would have become hearsay evidence were not admitted.

First, the person who shot the video, which was shown widely on local television, could not be found and/or did not wish to give testimony. Then Dr Danesh Rao, the forensic pathologist who conducted the post-mortem exam on Mr Lloyd, had left the job and had left Jamaica. Dr Rao was, therefore, unavailable to certify that the autopsy report was his.


The judge in that case, like Justice Sykes, was unconvinced that, in accordance with the Evidence Act, the witness could not be found after all reasonable steps had been made to find him.

There are good reasons, of course, why it is preferable to have witnesses attend court rather than merely have their cold, written statements admitted in evidence. The veracity of the information can be tested in cross-examination and their demeanour observed by judges and jurors.

But as Jamaican and other statute and case law accepts, it is not always practicable to have witnesses attend court, and hearsay, even when it is the decisive evidence for the prosecution, is not always prejudicial to the defendant.

Indeed, that point was settled persuasively for Jamaica in Regina v Horncastle when England's Supreme Court upheld the conviction of Michael Horncastle for causing grievous bodily harm primarily on the witness statement of the victim who died from drink before the case. That principle was upheld by the European Court of Justice, which reserved itself in the Imad al-Khawaja case that convictions in which written statements were decisive and defendants had no opportunity to cross-examine the witnesses were never allowable.


The fact is, as is contemplated by the Jamaican law, there are exigencies such as death that sometimes keep witnesses away from court. There is, too, that sad reality of Jamaica, which the chief prosecutor Paula Llewellyn likes to highlight: intimidation.

This newspaper has no doubt that Ms Llewellyn's office has reasonable questions to answer about competence - as do police investigators. But she also argues that whether investigators/prosecutors have made reasonable efforts to have witnesses attend court is a subjective test for judges.

Perhaps, therefore, the legislation can help in this regard by suggesting specific benchmarks. Or maybe the court might outline its own minimum expectations of 'reasonable effort' like, say, the Reynolds Principle in defamation.

There is now too much room for intimidating witnesses and perverting the course of justice.

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