Judge should have given basis for Kern ruling

Paula Llewellyn, Guest columnist

I refer to two recent Gleaner editorials, 'Resisting temptations' (March 26, 2014) and 'DPP going too far' (March 31, 2014), and the Bar Association president's guest column to The Gleaner (April 2, 2014) calling for clarification of my "post-acquittal pronounce-ments" on the Cuban light bulb trial.

In response to a media query on Nationwide that justice was not served, as I recall, I indicated that "I could understand the concern of some citizens who may feel that justice was not served".

In the normal course of proceedings, the court will hear evidence from the prosecution, then from the defence, and thereafter will deliver a verdict concerning the defendants. The case will be stopped at the midpoint if the prosecution offers no further evidence or the judge upholds a no-case submission.

In this matter, the prosecution closed its case after presenting 20 witnesses and 85 exhibits, including recordings between Messrs Rodney Chin and Kern Spencer, and banker's evidence with records unchallenged by the defence.

Multiple charges

There were 11 charges before the court. The Crown conceded we had not proved one of the charges against Coleen Wright, which would have left 10 charges remaining, spread between both accused, in respect of which the magistrate gave no reason for upholding the no-case submission.

Whereas a magistrate is not obliged to give reasons, it is the usual practice where a no-case submission is upheld. In Aqui v Pooran Maharaj (1983) 34 WIR 282, the Trinidad Court of Appeal held, allowing a prosecutor's appeal, that although no statutory provision expressly required a magistrate to state the reasons for his decision, the practice of doing so had grown up and been adhered to over the years so that it is now properly regarded as a rule of law. Thus, it is now a fundamental principle of justice that parties to litigation are entitled to know the reasons for the decision of a court of law.

The resident magistrate gave absolutely no reason for her ruling of less than 250 words after six years of trial. The Crown accepts and respects the judge's ruling, but we disagree with it on the basis of an erroneous application of law. It is in that context, given the legal requirements, that the "abundance of evidence" remark should be viewed.

It is the differences of opinion and interpretation between prosecutors and defence counsel, as well as between the judiciary and attorneys, which when reviewed by the appellate courts provide legal precedents on areas of the law. The DPP, unlike the attorney general, is completely shut out of that process because we have no right of appeal.

Aspects of the defence's submission relating to pro-secutorial misconduct were rejected and materially decided in favour of the Crown by the Full Court and the Court of Appeal in the case of DPP v Senior Resident Magistrate for the Corporate Area [2012] JMC Full 3. In the Full Court judgment, Mr Justice E. Brown stated:

"Nothing has been placed before us resembling the pale shadow of prosecutorial mis-conduct. The charge of pro-secutorial misconduct remains a theory with a superstructure which awaits the excavation for its foundation."

The pendulum of justice must swing not only for the defendant, but also for the victim in every case, irrespective of who the parties are. The public's perception of justice is bolstered by transparency and account-ability from all stakeholders in the system. The "justice not being served" comment must be seen in the context of the public being as perplexed as the prosecution for the judge stopping the case at that midpoint stage in the face of all the available evidence and the law pertaining to the area.

wouldn't abuse process

I have been taken to task for having a driving ego. In the Bar Association's letter, I was reminded "that the office must be seen to prosecute, not persecute". Though the magistrate appealed the Full Court decision and refused to recuse herself, I nonetheless declined to use my constitutional powers to discontinue the matter by entering a nolle prosequi to stop the case and recommence it before another magistrate. In my judgement, to have done this would have been unethical and, given the circumstances, an abuse of the process of the court.

In the discharge of my duties, I cannot take account of personalities involved in any case. I have never in my 30 years' practice discussed the competence of any judge, magistrate, defence attorney, or colleague prosecutor in the public domain. It would be unprofessional to do so.

I pledge that I will continue to execute my functions with courtesy and respect for all, without fear or favour, and to do nothing that will place into disrepute the system which I love and am committed to serve.

Paula V. Llewellyn, QC, is director of public prosecutions. Email feedback to columns@gleanerjm.com.