‘It’s a matter of public interest’

Senior attorney-at-law Bert Samuels says he is always wary of the court going ahead without the public viewing as the debate regarding media and family being locked out of the Jolyan Silvera murder case rages on.

Silvera, 52, a former People’s National Party (PNP) member of parliament, is charged with several counts relating to the death of his 42-year-old wife, Melissa.

The Court Administration Division (CAD) issued a release on the weekend citing aspects of the Constitution relating to the judge’s authority to restrict media access.

The CAD said the presiding judge, Justice Vinette Graham-Allen, upheld the rule of law as passed by the legislature.

According to the CAD, it has long been established that cases before the Circuit Court Division of the Gun Court are held behind closed doors to protect relevant parties such as witnesses.

It argued that, with Silvera being charged with murder and the offence of using a firearm to commit a felony, this activates provisions under Section 13 (1) of the Gun Court Act, which states that “in the interest of public safety or public order, no person shall be present at any sitting of the Court except – (a) members and officers of the court and any constable or other security personnel required by the Court; (b) parties to the case before the court, their attorneys, and witnesses giving or having given their evidence, and other persons directly concerned with the case; 2 | (c) ... (d) such other persons as the court may specifically authorise to be present.

“Section 13 (2) states that in the interest of public safety, public order or public morality, the court may direct that (a) in relation to any witness called or appearing before the court, the name, the address of the witness, or such other particulars concerning the witness as in the opinion of the court should be kept confidential, shall not be published; (b) no particulars of the trial other than the name of the accused, the offence charged, and the verdict and sentence shall be published without the prior approval of the court.”

The CAD stated that the judge is required to give effect to the policy reflected in the statute, which is to create an environment in which witnesses could attend and participate in the proceedings without their identities being made public or any information being made public that would enable them to be identified.

“When persons are indicted and placed before the Circuit Court, there is a default presumption of ready access to the proceedings by members of the public including the media. On the other hand, when persons are charged and placed before any division of the Gun Court (Parish Court Division of the Gun Court, the High Court Division of the Gun Court, and the Circuit Court Division of the Gun Court), the default position created by Section 13 of the Gun Court Act is that members of the public, including the media, are excluded unless they come within the exceptions.”

Graham-Allen gathered journalists inside the courtroom at the first hearing for the former lawmaker and said permission would not be granted to cover, adding that maybe coverage would be allowed at some later time in the proceedings.

Journalists were then asked to wait outside and visit the Courts Office (records) for updates.

Samuels, who spoke to The Gleaner on Friday, said at the time that he was yet to be convinced in his own mind, the justification for barring the press.

“It’s a matter of public interest in these cases. I don’t think that evidence was being led (Thursday),” Samuels said.

The 45-year veteran said open court is a constitutional guarantee to the people of Jamaica.

“That our court should be open to the public and there are exceptions, for example family matters, family matters involving children are exceptions,” Samuels said.

Silvera, who is represented by King’s Counsel Peter Champagnie and attorney Patrice Riley, was further remanded until February 8 as certain documents were outstanding.

Deputy Commissioner of Police Fitz Bailey, head of the crime and security portfolio, since Silvera’s arrest on January 19, has been confident that further charges would be laid against the accused.

He was charged for murder at the preliminary stage.

News emerged on the weekend that Silvera was also charged under the Gun Court Act for using a firearm to commit an offence.

His licensed firearm was seized for testing when an autopsy revealed that Melissa was shot at least three times.

The results of those findings are expected to be disclosed to his defence team at the next sitting.

It remains unclear whether the media will be allowed at the next hearing.

The Jamaican Bar Association (JAMBAR), in a statement through attorney-at-law Tamika Harris, who chairs JAMBAR’s Criminal Law Committee, said it agreed that reasons for barring the media should have been provided, but that it could not accept any attempt to publicly pressure the judiciary to immediately reverse any decision.

The Press Association of Jamaica (PAJ) and the Media Association Jamaica Ltd (MAJ) had both made calls for an immediate reversal of Graham-Allen’s decision.

Yesterday, the PAJ went a step further, calling for the Gun Court Act to be changed to allow media and the public access.

According to the association representing the nation’s journalists, the barring of persons from the Jolyan Silvera murder case is a bad move by the judge when viewed against the background of the Constitution.

The association is of the view that the starting point or “default position” of exclusion in the Gun Court Act can no longer be justified under the Jamaican Constitution, particularly given the guaranteed rights of due process and freedom of expression, which include freedom of the press.

“The PAJ therefore calls for the repeal of Section 13 of the Gun Court Act and its replacement with a provision in which the ‘default position’ is public proceedings. Exclusion from court for legitimate reasons should be the exception and not the norm,” argued the association.

The PAJ said that, over the years, the justice system has found ways to protect vulnerable witnesses in high-profile murder cases involving the gun without excluding the media and the public, such as remote testimony via video call in the Uchence gang trial.

“Constitutionally, therefore, there would be a high bar for excluding the media and the public from court, especially given the less restrictive but still effective measures for protecting witnesses already in use in Jamaican courts. As stated above, any such decision would have to be justified. Arbitrary invocations of a judge’s discretion would certainly not qualify.”

The PAJ argued that transparency in justice is critical.

andre.williams@gleanerjm.com