Soldiers in Keith Clarke case lose bid to halt murder trial

The Court of Appeal has dismissed an application by the soldiers accused of murdering businessman Keith Clarke for their trial to be put on hold.

The court this morning said the trial "may proceed".

The trial was scheduled to start at 10 a.m. today with the empanelling of a jury. 

A previous start date was April 8 but it did not get under way because of inadequate jurors. 

The case has been ongoing since 2012 when chief prosecutor Paula Llewellyn ruled that three soldiers, lance corporals Greg Tingling and Odel Buckley, as well as private Arnold Henry, be charged for killing Clarke at his home in 2010. 

The accused soldiers filed notice of intention to appeal the April 3 decision Supreme Court Justice Dale Palmer, who ruled that the case should proceed to trial after he determined that immunity certificates given to the soldiers can be rebutted by the prosecution. 

The men applied to the court for the trial to be put on hold given their intention to appeal. 

But Justice Palmer refused.

The soldiers later applied to the Court of Appeal for a stay of proceedings. 

However, the court panel comprising Justices Carol Edwards, David Fraser and Georgiana Fraser, today refused the application for the stay and indicated that the trial may proceed. 

Attorney John Clarke, who represented the soldiers at the appeal court, argued that Justice Palmer did not have jurisdiction to rule on whether the prosecution could challenge the immunity certificates. 

He asked the court to determine that the hearing was a civil one and not a criminal proceeding. 

Clarke said the matter should have been in the civil court as doing it in the criminal arena subjected the Jamaica Defence Force members to unfairness. 

In a civil case, parties can appeal a ruling before the matter is disposed of while in criminal cases, rulings cannot be appealed until a conviction. 

However, the prosecution countered that a 2023 decision of the Court of Appeal expressly ordered that the preliminary hearing should be held in the criminal justice system. 

The court had ruled that a trial should go on. But it said before that there should be a preliminary hearing "in the nature of a voir dire" or a trial within a trial, involving a judge sitting without a jury, to determine whether the immunity certificates can be rebutted. 

The 2023 appeal ruling upheld the validity of the immunity certificates that were issued by National Security Minister Peter Bunting in February 2016, six years after Clarke's death and four years after the men were charged. 

The businessman was shot 21 times inside his home, located on Kirkland Close, in St Andrew, on March 27, 2010, during a police-military operation to apprehend then fugitive drug lord Christopher 'Dudus' Coke.

- Jovan Johnson

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