A crisis of truth

Bert Samuels, GUEST COLUMNIST

The well-intentioned laws relating to the use of the statement of a dead or missing witness have now been brought into sharp focus in light of the Lyn-Sue incident, followed by the shameful revelation brought about by Sergeant Michael Sirjue's forgery of a witness' signature.

The possibility of the phantom witness, created by an unscrupulous law-enforcement officer in order to provide the evidence necessary to put away a 'notorious criminal', was well known to both sides of our adversarial criminal-justice system.

Ten years ago, a clerk of the court confided in me that an officer confessed to her that he had created a witness to put away a well-known criminal. In my view, as a consequence of the more stringent rules relating to the use of lethal force in policing, it has caused trigger-happy policemen to seek other means to put away 'criminals'.

INDECOM has placed even more hurdles in the way to prevent the summary execution of suspects. Consequently, the number of people killed in shoot-outs has been substantially reduced. This, in my humble opinion, has triggered the emergence of unscrupulous members of the force resorting to the practice of 'fixing' witness statements against criminal suspects. These rogues have banked heavily on that common sentiment that these unfair means to get criminals are justified by their ultimate conviction in a court of law.

This is how it works: the Evidence Act allows a witness who has signed a statement in a prescribed form, and who has died or cannot be found, to have his or her statement read at a trial. This was born out of a challenge to the system of justice whereby criminals, by themselves or through cohorts, murdered witnesses, resulting in the criminals walking free from a lack of evidence for their trial. In short, it was in the interest of a sure acquittal that criminals resorted to destroying the evidence by killing the witness.

Parliament was encouraged not to sit by and allow this unacceptable state of affairs to continue. In 1995, the Evidence Act was consequently amended to allow the witnesses to virtually speak, unquestioned, from the grave. In seeking to address this mischief, the Parliament turned a blind eye to our settled constitutional rights accorded to accused in criminal trials.

relevant constitutional provision

The combination of the crafty, dishonest policeman and the career prosecutor, whose primary focus is to win by any means necessary, can draw the justice system into disrepute. The relevant constitutional provision is the newly enacted amendment which replaces Chapter 3 of the Constitution - the 2011 Charter of Fundamental Rights and Freedom. The charter states, among other things, that a defendant at trial enjoys the right to (Section 16.6.d) "examine or have examined at his trial witnesses against him". This right cannot be infringed on by any law, even if it is passed by our Parliament.

Section 13.2.b of the charter emphatically pronounces that "Parliament shall pass no law and no organ of the State [including the police] shall take any action which abrogates, abridges or infringes those rights".

In every witness statement, a certificate is affixed at the end, which cautions the maker of that statement that they may be liable to prosecution if they wilfully lie. Where a witness, having given his statement, dies, and it is thereafter discovered that he lied, no action will follow, for obvious reasons.

The current scandal relating to false statements shamefully begs the question: How many convictions have been unlawfully imposed using the cover of the amendment to the Evidence Act? This amendment, which effectively denies the defendant's right to examine his accuser, guaranteed by our Constitution, has legislated what is commonly known as a 'defendant's nightmare'. This nightmare is a paper trial which is conducted on the basis of the witness having been satisfactorily proven to be the maker of the written statement, and is dead or is unable to attend for some statutory reason(s), including a police report that he cannot be found.

The problem of witnesses being killed cannot be resolved by this amendment to the Evidence Act, which is patently out of line with our Constitution. I hereby submit that the State must now repeal that law.

slain witnesses

The mischief of slain witnesses must be curtailed by a) the institution of provisions for speedy trials, following immediately on statements being taken, and b) the State guaranteeing that there is in place adequate protection for vulnerable witnesses under a properly organised witness-protection programme.

We cannot recklessly allow this opening to remain in the fabric of our justice system, to be exploited by the exuberant bad eggs in the police force. We must immediately review all cases in the past where paper trials were conducted to attain conviction. And, last but foremost, we must now repeal the law which has certainly led to the miscarriage of justice of, yet to be determined, unknown proportions.

The lesson to be learnt from the current crisis is that we have nothing to gain in the long run where, for the sake of expediency, we are prepared to sacrifice these well-settled constitutional principles (the right to face your accuser). This experience will reinforce the system whereby we are governed; that it is our Constitution that is supreme, and not the Parliament.

I close with this thought: all that is necessary for the triumph of evil is that good intentions are enforced by bad laws.

Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.