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Hard case to prosecute

Witness’ lack of cooperation a major hurdle in assault cases

Published:Sunday | May 2, 2021 | 12:20 AMLivern Barrett - Senior Staff Reporter
Defence attorney Christopher Townsend.
Defence attorney Christopher Townsend.
Matondo Mukulu, former acting public defender.
Matondo Mukulu, former acting public defender.

A prosecutor would have virtually no chance of pinning a charge of assault on a man seen viciously attacking a woman in a viral video without help from the victim on the receiving end of the brutal beatdown, according to legal experts.

It appears to be a validation of the decision by the police to end an “exhaustive” probe of the circumstances behind a near seven-minute video – over which the police had sought Westmoreland Central Member of Parliament George Wright as a person of interest – 10 days after the incident was first reported to investigators.

A veteran prosecutor and a top criminal defence attorney agreed that the woman in the video, believed to be Wright’s common-law partner, Tannisha Singh, would need to give evidence grounding at least two “essential ingredients” required to prove the offence of assault.

“We do not know whether or not what we perceive as an assault (seen on the video) was not a consensual act on the part of both parties,” said well-known attorney, Christopher Townsend, explaining a major legal hurdle prosecutors would encounter.

“So, it would need the narrative of the complainant to say exactly what it is (that was captured on video) and that whatever it is, she was not a party to it by way of giving permission to what we perceive as an assault,” he added.

In addition to proving the identities of the persons involved, another major hurdle, according to the senior prosecutor, is the onus placed on the State to show that at the time when the accused “did what he did or said what he said or both”, the complainant apprehended some sort of fear or potential harm.

“Now, the best person to give that evidence would be the complainant,” said the prosecutor, who spoke on condition of anonymity because “the thing has become too politicised”.

Noting that assault is an offence against the State and not an individual, the senior prosecutor said charges could be laid against the offender without the victim’s cooperation by relying on an eyewitness.

For this to be done, the prosecutor said the video would have to show clearly the identities of the persons involved and that the woman sustained discernible injuries.

“If, for example, you had a situation where the two people on the video, you still can’t make out their faces, but the man use a machete and chop off the female’s hand and on the video you can plainly see the hand chop off, you would be in a better position there,” the prosecutor explained. “Because if you get the third party to come and say I was there and I saw when her hand was severed and it was A and B, ... that would be clear wounding with intent.”

But even in that scenario, one would encounter legal challenges.

As an example, the Crown would still need to produce a medical certificate establishing a nexus with the woman in the video, the prosecutor said.

Wright became embroiled in the assault saga after the video of the beatdown was made public last month.

It is believed that the incident occurred in Chester Castle district, Hanover, on April 6 – the same day Wright and Singh gave different accounts to police investigators.

Ten days later, after an “exhaustive” investigation, the police closed the case, citing the “unwillingness” of Wright, Singh and other potential witnesses to participate in the probe.

The poor quality of the video was also cited as a factor in the decision to close the investigation.

Give a formal statement

“Given the physical state of Miss Singh, the police escorted her to a medical facility to ensure she received treatment,” the police said in a statement announcing the decision.

“She was asked to return to the station after treatment in order to give a formal statement. To date, attempts at securing said statement have proven futile.”

Matondo Mukulu, former acting public defender, is among several persons who publicly criticised the police for pulling the plug too early on the investigation.

“There is video evidence, but we have not been informed what additional measures were taken by the police to verify the identity of the persons on the video,” said Mukulu, an attorney who resides in the United Kingdom.

Senior cops in Westmoreland declined to comment on their handling of the case, disclosing that they have been given “strict instructions” that all communications should come from the Police High Command.

Assault, assault occasioning actual bodily harm and unlawful wounding are the main offences under common law and the Offences Against the Person Act that involve violence, expert say.

The bulk of these cases – usually domestic disputes – are prosecuted in the parish courts, the third tier of Jamaica’s judicial system.

Data on the number of such cases before the courts was unavailable up to press time.

But a majority of these cases, according to the senior prosecutor, never make it past the first court date, either because the complainant has been paid or the parties reconcile.

The prosecutor cited, as an example, the case of a couple who were both members of the Jamaica Constabulary Force.

The policeman was charged for illegal possession of firearm and shooting with intent for allegedly taking a firearm from his spouse’s handbag and shooting her twice.

The charges were dismissed after prosecutors offered no evidence against the cop.

“A day before the trial, she indicated that she and the accused slept in the same bed and she no longer wished to press charges. She is someone who should know better,” the prosecutor said.

“Ninety per cent of the cases that come before the court usually require the cooperation of the complainant, and this is why some police officers take a cavalier approach [to investigating these cases] because invariably, the complainant come back and say they are not pressing charges.”

Townsend believes police investigators should discontinue the practice of sending victims of assault to get a medical report before recording their statement.

“If it is that you clearly discern swelling, if it is that you clearly observe injury to the person, why not take their statement immediately and then, as a part of the investigation, you obtain the medical report?” he suggested.

The senior prosecutor disagreed, saying allowing the victim to get immediate medical care was the humane thing to do.

Still, they agreed that the police made the correct call when they decided to end the probe.