Unique legal dilemma surfaces in Keith Clarke trial

In a landmark decision yesterday, Justice Dale Palmer, who is presiding over the Keith Clarke murder trial, ordered the commanding officer present during the raid in which the businessman was killed to testify in court, responding to a prosecution request.

This rare move – perhaps the first – in the Home Circuit Court is striking, given that the commanding officer already gave evidence for the defence during the preliminary hearing and was previously cross-examined by the prosecution.

The crux of the matter is that the prosecution did not call him as a witness initially, but now they seek his testimony, although he has already been integrated into the defence’s arguments.

In June, approximately six to seven weeks into the court proceedings, the prosecution requested that the commanding officer be called as a witness, prompting objections from the defence.

Justice Palmer then asked for submissions on behalf of the three accused soldiers on trial as to why the objection was made. The defence argued that the situation would be a breach of the accused men’s constitutional rights under Section 16 (6) (D) and also Section 16 (1) of the Constitution. Section 16 speaks to an accused being entitled to a fair trial and the right to call and obtain witnesses of one’s choice.

The defence also argued that the proposal by the prosecution was a manoeuvre to destabilise the defence, which would amount to an abuse of process, because the commanding officer being called by the Crown would infringe on the men’s constitutional rights.

It was difficult to find appropriate precedents for such a novel situation.

ADMISSIBLE EVIDENCE

The prosecution, by law, is to allow any admissible evidence, but the mere fact that the witness was on the ground that night and was the commanding officer means the defence can also put its case to him.

Before making the landmark ruling, Justice Palmer said, “I’ve never come across quite this scenario.”

He continued: “At the core of the objection is that it would be unfair and potentially prejudicial … . Given the history of the matter, it certainly did come across as a bit untidy.

“There is nothing in law that prohibits the Crown from calling the witness … and while one can see some strategic benefit to be able to call a witness, … I would not agree that there is any prejudice … if the witnesses [is] called on the Crown’s case, as there is virtually unlimited opportunity to cross-examine this witness by the defendants,” he said.

The commanding officer will be served.

The matter continues on Monday with a retired female government forensic analyst, who went to the Kirkland Close, St Andrew residence in 2010 to analyse the death scene, and more specifically, the master bedroom where Clarke was shot.

Clarke, a chartered accountant, was shot dead on May 27, 2010 inside the master bedroom of his house during a police-military operation.

The operation was aimed at capturing then-fugitive Christopher ‘Dudus’ Coke, who was wanted in the United States on drugs and weapons charges.

The soldiers were charged with murder in 2012, two years after Clarke was killed.

ainsworth.morris@gleanerjm.com