Gordon Robinson | Not a reason to retain Privy Council
There has been much media hoopla regarding the Privy Council (PC) overturning Jamaica’s Appeal Court in the case of Lescene Edwards v R .
I’m incredulous that the conversation has reached such an inglorious condition that this case becomes the launch pad for an embarrassing regurgitation of the colonial argument that Jamaica should retain that Judicial Committee as its final appellate court. What the granny gungus natty?
It’s important to look closely at the PC’s reason for deciding as it did. Media followers should be disabused of the idea that somehow, this case proves that our courts and prosecutors are wicked and malicious, which is one inference to be drawn from an assertion that Mr Edwards shouldn’t have been prosecuted.
Firstly, some important facts: The deceased was the mother of Edwards’ twin children but had married another man who resided overseas. Yet she continued her intimate relationship with Edwards. Edwards visited the deceased (who lived with her mother). While they were alone together in the deceased’s bedroom, her mother dozed off but was awakened by a loud noise followed by Edwards coming to her asking, “Where is ‘Pat’?” Eventually they both opened the bathroom door and found the deceased on the floor. Police, shortly after arrival, found a notebook on the deceased’s bedroom dresser with what appeared to be a suicide note.
There was no forensic evidence to conclusively establish murder or suicide. No gunshot residue (GSR) was found on the deceased, her clothing (analyzed days later), or Edwards’ hands. But Edwards was questioned, and based on his conduct and evidence from a local handwriting “expert” (a retired SSP) that Edwards had written the suicide note, he was charged and convicted after a professionally conducted prosecution and a detailed summation by a judge (albeit, as usual, tending mildly towards conviction).
The Appeal Court found no legal reason to interfere with the jury’s findings of fact despite the many arguments why they were wrong (save in exceptional circumstances Appeal Courts don’t substitute their own view of the facts for those of tribunals of fact).
Regarding the judge’s summation, the Appeal Court wrote:
“... the jury would have been in no doubt as to the task that they had been asked to perform and the issues of fact that they were required to consider, in deciding who had fired the shot that killed Mrs Harris-Vasquez. They decided, on those facts, that it was Mr Edwards who had done so. This court, on the basis of the written evidence alone, cannot say that they were ‘obviously and palpably wrong.’”
On the issue of the judge’s summation’s alleged imbalance, the Appeal Court pretty much repeated the above.
So why did a British Court come to a diametrically different decision? Is it that British judges are inherently better than Jamaican judges so that we must cling to their top hats and coat-tails forever?
Of. Course. Not! What hasn’t been reported anywhere that I’ve seen is that the PC’s decision was significantly affected by FRESH EVIDENCE that wasn’t led at trial or considered by the Appeal Court.
With apologies for boring non-lawyers to tears, I must reproduce the PC’s perspective on the fresh evidence in much too much detail:
“ 36. The application to adduce fresh evidence before the Board sought to introduce three expert reports. One was a joint report of Mark Mastaglio, a ballistics expert, and Angela Shaw, a gunshot residue expert… . The other two were a report of Gillian Leak, a forensic consultant dealing with blood spatter evidence ... .\and an addendum report … after Mrs Leak had been supplied with better-quality photographs of the scene.
“ 37. In the joint report of Mr Mastaglio and Ms Shaw, Mr Mastaglio notes that the right temple is one of the most common elective sites in suicides and that the position of the body, the location of the gun, and the height of the bullet hole in the bathroom door ‘can all be explained by suicide’. There was no firearms evidence of third-party involvement. The scene ought to have been examined by an expert in trajectory reconstruction analysis. The fact that this did not occur was a failure to adhere to best practice. The deceased could not have been standing upright when she was shot due to the low level of the bullet hole in the door.
“ 38. Ms Shaw concludes that the absence of GSR on the deceased’s hands ‘does not support the view that she was shot by a third party’. Moreover, she writes, the GSR testing method used in the case cannot be relied upon due to a lack of specificity and Page 23 sensitivity. GSR ought to have been found on the deceased’s nightdress (whoever fired the gun) and the absence of it supports the conclusion that the testing was unreliable. The area of the hands from which swabs were taken was too limited. Supt Hibbert should not have taken the swabs due to the risk of cross-contamination from his routine ballistics work. The loss of the deceased’s clothing prior to trial ‘certainly prejudiced’ the defence as there was no opportunity to retest using proper techniques.
“ 39. Mrs Leak’s reports on blood spatter state that the blood patterns indicate that when the fatal shot was fired, the deceased was sitting down with her back against the left side of the closed bathroom door and jamb. Following the shot, she slumped to the left. The area of space available for someone else to be present in the bathroom and to deliver the shot would be minimal. It is highly likely that the deceased’s heart continued to beat for a short time after the bullet passed through, projecting spurts of blood from the injured temple region; and there would be a high expectation of finding projected blood spatter-type pattern on anyone who was present and stepped over the body when it was partially blocking the doorway. If Mr Edwards had shot the deceased, he would thus have been spattered with some of the blood bearing similar distribution patterns to those found on the bathroom wall; but there is no evidence that any blood was found on Mr Edwards or his clothing. Photographs of the right hand of the deceased show staining consistent with her holding a gun and firing it and there is no evidence providing any alternative explanation of how that pattern of staining of the hand could occur. Mrs Leak’s conclusion is that while it cannot be completely ruled out that the deceased was shot by a third party, the available evidence ‘far more readily’ supports a hypothesis of suicide than of murder.
“ 40. No contrary expert evidence has been obtained by the prosecution.”
Let’s boil this down to gravy. The brand new UNCONTESTED evidence considered by the PC (unavailable to our local courts) established:
• The right temple is the site of choice in suicides;
• Suicide was the most likely explanation for the body position, gun location, and bullet hole in the door;
• No firearms evidence of third-party involvement existed;
• That the crime scene wasn’t examined by a trajectory reconstruction analysis expert was a failure to adhere to best practice.
That last bit (NOT anything previously in evidence) could form a basis for condemnation of police investigation. There’s more:
• The absence of GSR on the deceased’s nightdress only proves testing was unreliable. It should’ve been there no matter who fired the shot;
• GSR testing was generally bad and loss of the deceased’s clothing prejudicial to the defence;
• Blood spatter evidence proved nobody but the deceased was in the room when the shot was fired.
Edwards’ lead counsel gave reasons why this evidence wasn’t led at trial:
(a) Jamaica has no independent ballistic, blood splatter or GSR analysts.
(b) The limited resources available (client self-funded) were used to bring a USA handwriting expert of paramount importance.
(c) It was decided that best efforts would be made through cross-examination of the State’s expert witnesses.
(d) Jamaica lacks an independent crime scene reconstruction expert to analyse photographs.
(e) The deceased’s relatives prematurely cleaned the crime scene.
(f) The defence was at a severe disadvantage due to destruction of firearm, clothes, and other exhibits
The PC stated categorically that the fresh evidence could NOT have been obtained for the trial with reasonable diligence and it had “a significant impact on the safety of the conviction”.
This case exposed serious deficiencies in our criminal justice system, but NOT ONE has anything to do with our judicial capacity or intellect. It does NOT support a backward argument that we should persist with a pretend Independence by continuing to beg English aristocrats to tell us what Jamaican law is or should look like.
Peace and Love!
- Gordon Robinson is an attorney-at-law. Email feedback to firstname.lastname@example.org