DPP shouldn't target judge for her own failings

K.D.Knight, Guest Columnist

I read with some amount of dismay the article, 'Judge should have given basis of Kern ruling', by Paula Llewellyn, published on Friday, April 4, 2014.

The calling of 20 witnesses and having 85 exhibits admitted in evidence is no basis for asserting, as the Director of Public Prosecutions (DPP) seems to be doing, that the case is a strong one. In this case, some witnesses were far more helpful to the defence than to the prosecution. A glaring example is Henry Russell of the Petroleum Corporation of Jamaica (PCJ), who testified that all invoices paid by the PCJ were genuine. Bear in mind that all payments were made by the PCJ.

In her column, Llewellyn preened at calling "bankers evidence with records unchallenged by the defence". I was taught, as a lawyer, that if the evidence does not implicate your client, leave it alone. So I left it alone. Coleen Wright was charged with having committed four offences. The prosecution conceded on one charge, after having stoutly presented arguments that the charge was proved.

One charge dropped

The concession came about after the DPP, during her response to the no-case submission, became aware that having sought and obtained RM Pusey's permission to amend the original charge, no evidence was led capable of establishing it. We opposed the introduction of the recordings, but the RM disagreed with us in favour of the prosecution.

In another charge, when the witness who, in our view, was intended to prove it was giving evidence, not a word was adduced about it. But in any event, the evidence from him would have been insufficient. Whose fault is it in not adducing even the little that was available? There were three prosecutors at all times.

A third charge was that Wright was a public servant. I personally told the prosecution at an early stage that they could not prove that. The cross-examination of Dr Jean Dixon, the then permanent secretary, and Sibblies, the then HR specialist at the PCJ, established that Wright was not a public servant.

The other charge was duplication, and, like its image, could not succeed. The prosecution, from the very beginning, fell in error. Then ACP Les Green described Wright as a "PCJ executive who masterminded" the entire matter. She was a simple personal assistant and masterminded nothing.

Llewellyn is not correct to say that "whereas a magistrate is not obliged to give reasons, it is the usual practice where a no-case submission is upheld". In my years at the Bar, I have experienced judges sitting alone and magistrates upholding no-case submissions oftentimes saying no more than "Please stand up, I have accepted your lawyers' submission. You are free to go."

The situation is different in jurisdictions where the prosecution can appeal a ruling of no case to answer. In that situation, the appellate tribunal will be examining the reasoning of the lower court to determine if it is in accordance with established law. So, too, at the end of a full trial, a judge need not give any reason for acquittal, but must do so for a conviction because that is appealable.

Prosecutorial misconduct

It is amazing that the DPP should cite Justice Brown's words in the case she brought against the senior resident magistrate. They can be of no comfort to her as the issue of prosecutorial misconduct was not before that court. The language of His Lordship was impeccable, but with respect, how could prosecutorial misconduct have been "placed before" that court when the defence, who raised it in the lower court, was not party to the proceedings before him? Therefore, our voices were never heard on that issue.

I agree with the DPP that "the public's perception of justice is bolstered by transparency and accountability from all stakeholders in the system". So, Madam DPP, tell the country what accounted for Chin's transfiguration from accused to star witness.

Madam DPP, you had no constitutional "powers to discontinue the matter by entering a nolle prosequi" to stop the case and recommence it before another magistrate". And you know that you didn't. Our appellate court, having pronounced on the exercise of the power to enter a nolle prosequi, would have had no hesitation in describing any attempt by you to have so done as "an abuse of the process of the court and a contravention of the Constitution". Your action was not born of benevolence; it was circumscribed by law.

The public and the DPP should know that trial lawyers, too, have had our disappointments. We get angry at some decisions which go against us, but we must never allow our anger to spill over as venom on the decision maker.

K.D. Knight, QC, represented Coleen Wright in the Cuban light bulb trial. Email feedback to columns@gleanerjm.com.