‘Serious mistake’

The Court of Appeal says it overturned an ex-policeman’s 2021 murder conviction after finding that his claim of self-defence was not properly addressed during the trial, a lapse that undermined the fairness of the proceedings.

The written reasons, handed down last Friday, follow orders, made on June 27, setting aside Oshane Thompson’s life sentence for the shooting death of Kriston Pearson at a party in Port Maria, St Mary, in May 2017. It ordered a retrial.

Thompson was arrested in August 2018, convicted in a judge-alone trial in September 2021, and sentenced in November that year.

The prosecution’s case was that during the party, Thompson, a constable at the time, allegedly touched Pearson’s partner, identified as ‘Miss Henry’, on her arm or bottom, sparking a confrontation in which the two exchanged profanities and tussled. Thompson then shot Pearson, who, according to witnesses, was unarmed. Henry, who was a friend of Thompson, and another eyewitness, identified as ‘Mr Walters’, testified at the trial.

Thompson’s defence was that he shot Pearson in fear for his life after being attacked twice, the second time with a broken Heineken bottle.

His lawyers in the appeal, King’s Counsel Jacqueline Samuels Brown and attorney Robert Fletcher, argued, among other things, that Thompson’s constitutional right to a fair trial was breached as self-defence was not put to the witnesses, and the judge failed to deal with it when it became obvious in the case.

In a unanimous decision, justices Jennifer Straw, Nicole Foster-Pusey, and David Fraser agreed that the trial was not fair due to the limited focus on the self-defence contention.

Thompson, who had been serving life with a stipulation of 20 years and eight months before parole, admitted firing the fatal shots but maintained that he acted lawfully to protect himself.

His account was supported by his injuries and reports from an INDECOM investigator about pieces of a broken bottle found at the scene.

In an affidavit filed on September 23, 2024, Thompson’s trial lawyer, King’s Counsel Peter Champagnie, rejected any suggestion that he failed to present his client’s case fairly or competently.

Champagnie said he took “several steps” to ensure that Thompson’s defence was properly advanced and that Thompson “never expressed any disagreement with the proposed defence strategy”.

The lawyer said Thompson was consulted throughout the trial. He said he discussed each prosecution witness statement with Thompson and explained that certain statements that supported the defence could be admitted into evidence without cross-examination, a course Thompson agreed to by signing the necessary forms.

On the key eyewitnesses, the lawyer said testimony in court from Miss Henry initially matched her statement that she had not witnessed the shooting, and under cross- examination, she confirmed that this was “indeed the truth”.

As for Walters, the lawyer said Thompson had “firmly instructed” that he was not present during the incident, and he put this directly to the witness in cross-examination.

“On the bases mentioned above, the appellant’s instructions regarding self-defence could not have been put to either Miss Henry or Mr Walters,” he said, adding that to do so would have been “disingenuous, reckless, and in conflict with the appellant’s instructions”.

Champagnie insisted that self-defence was before the court through other means - the agreed statement of first responder Constable Keron Fraser, who said Thompson claimed self-defence and had visible mouth injuries; a medical report confirming those injuries; testimony from defence witness Dwayne Grey that Thompson acted in self- defence; and Thompson’s own unsworn statement.

He denied telling Thompson to simply repeat a prepared statement, saying that the unsworn account was “in his own words”and drawn from his observations of the trial.

The lawyer maintained that his conduct “ensured a fair trial in line with due process and that the trial judge “erred” by not sufficiently considering self-defence that arose from the prosecution’s case through the agreed statements.

But the appeal court did not accept most of Champagnie’s reasoning.

“It was not enough, as defence counsel did, to rely solely on aspects of the agreed statements,” wrote Foster-Pusey. She pointed to evidence such as a medical report about Thompson’s mouth injuries and the presence of broken pieces of a bottle, which suggested self-defence.

“Yet the appellant’s version of how he became injured was never put to the prosecution witnesses,” the appellate judge added. “This was a deliberate strategy by defence counsel, but it was a serious mistake.”

The court said the attorney’s “failure to put the appellant’s case of self-defence to the prosecution witnesses eroded the credibility of the appellant’s case” and contributed to the trial judge, Carolyn Tie-Powell, viewing Thompson as “insincere and deceptive”.

The appeal court noted that Tie-Powell should have intervened before closing arguments to address the gap between the evidence from the defence and what was put to prosecution witnesses.

“The learned trial judge erred when she did not, before her summation, engage defence counsel about the stark difference in what was put to the prosecution witnesses in contrast with the defence case,” the appeal court said.

The court said the trial judge should have intervened to find out why Thompson’s lawyer did not put his self-defence case to the prosecution witnesses. It said the judge would have several options - recalling witnesses, highlighting points in the Crown’s case to ensure a fair trial, or allowing Champagnie to indicate what his instructions were.

During the appeal hearing in March, prosecutor Ruth Anne Robinson conceded the lawyer’s error. She said Thompson’s attorney should have challenged the eyewitnesses using Thompson’s claim that he was repeatedly attacked and injured. She also conceded that the judge should have weighed the prosecution’s evidence in light of Thompson’s injuries and the lack of explanation for them.

However, Robinson argued that even if the lawyer had placed Thompson’s self-defence case to the witnesses, it would not have changed the outcome. She also said the judge could not be faulted for commenting on the discrepancies.

Foster-Pusey disagreed.

“We saw these submissions as contradictory, and, in any event, wrong in light of the law on the issue,” she wrote.

“The issue in question was whether the appellant had a fair trial. It was not for this court to surmise as to what would have happened if the appellant’s defence had been properly put. He was entitled to due process, and this included having his defence properly presented during the trial,” Foster-Pusey said in a 36-page opinion.

“We agreed that the failure to put the appellant’s version of events to the prosecution witnesses ultimately made the trial unfair and denied the appellant the chance of an acquittal.”

On the question of whether to retry the case, the judges weighed factors including the seriousness of the murder charge, the availability of witnesses, and the prosecution’s readiness to proceed in the St Mary Circuit Court.

Although some witnesses have migrated and certain exhibits are missing, the court ruled that a new jury could still fairly assess “who to believe” on the self-defence claim. The prosecution said there was one available eyewitness who disputes that Thompson acted in self-defence.

The court had set the matter for mention on July 7. Thompson has since been granted bail.

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