Legal watchdog finds prosecutor guilty in landmark decision

For the first time in Jamaica’s legal history, a prosecutor was found guilty of professional misconduct following a complaint made by a man who was freed of fraud charges.

The Disciplinary Committee of the General Legal Council found that while Sophia Thomas worked in the Office of the Director of Public Prosecutions, she violated the canons of professional ethics while prosecuting a fraud case in the Kingston and St Andrew Parish Court in November 2017.

Thomas is on secondment as a prosecutor in the Turks and Caicos Islands.

A date is to be set to give Thomas an opportunity to be heard in mitigation before a sanction is imposed by the committee.

A complaint was made in 2019 by Lowell Spence, a National Commercial Bank branch manager who was freed of fraud charges in November 2017.

Spence, who was represented by attorney-at-law Matthew Hyatt, complained that Thomas knowingly used false evidence and/or participated in the creation or use of evidence that she knew to be false.

“So as lawyers, when we see unfairness or dishonesty on the part of prosecutors, we must let our clients file a complaint to the GLC ,” says attorney-at-law Bert Samuels, who represented Spence at his trial.

“We cannot let them off the hook or they will be unleashed on the public as judges in our courts, the place where all prosecutors end up, and later on the Court of Appeal Bench,” Samuels said.

Witness’ memory

The complaint stemmed from the prosecutor’s attempt, in November 2017, to refresh a witness’ memory from a statement. When Samuels compared the original with the photocopy, Samuels told the parish judge that they were different. When the judge asked Thomas if the document was the original she had previously served on the defence, she replied, “Yes, it is the original.”

An adjournment was granted for comparison of the documents, and on resumption, Samuels pointed out that there were 11 differences between the documents, but Thomas explained that they had the same content.

On resumption of the matter, under cross-examination by Samuels, the witness, Dominic Duval, a bank employee, admitted that he had signed the purported original statement the day before court in November 2017 on the instructions of Mr Hines, the head of the bank’s internal investigation unit. The witness said the May 2017 statement submitted to the DPP “is the original statement and that this one was done the day before coming to court”. Duval said he was asked by Hines to sign a new statement, which he did, and gave it to Thomas.

Following the disclosure, the judge spoke to the lawyers in chambers and later announced in open court that the director of public prosecutions would be addressing the court and adjourned the matter to December 21, 2017.

DPP Paula Llewelyn attended court on that date and announced that the prosecution was offering no further evidence. The judge told Spence he was free to go.

Thomas, the respondent, maintained during the hearing that there was no new material in the reconstructed document that could have resulted in an injustice to the complainant Spence. Thomas denied that she led the judge to believe that she had found the original statement and denied saying words to the effect that she had found the original.

First original statement

The prosecutor explained that by referring to it as second original, she meant that it “came from the very witness who had made the first original statement, and there were no changes, save and except the ones that are before the panel, and that is why I call it the second original, and at the time, I was not aware that those changes had been made.”

The committee said Thomas said the second original was given to her two to three minutes before she entered the courtroom, and she did not examine the document as she expected it to be a replica of what was produced earlier.

In its decision, the three-member panel of the committee found that Thomas failed to maintain the honour and dignity of the profession. The panel said she failed to maintain her integrity and counselled others to act injuriously to the legal profession.

When contacted Sunday, attorney-at-law Hugh Wildman, who is representing Thomas, said she has strong grounds of appeal and would be taking the matter to the Court of Appeal.

Wildman said one of the grounds will be in relation to a statement by the chairman of the panel before the case ended in which she invited him to make a mitigation plea on behalf of Thomas.

He said he had to remind the chairman that the case was not over and that they were not at the mitigation stage, for which the chairman apologised.

Wildman said that a prosecutor has the legal right to use a photocopy statement in court if the original cannot be found, and Thomas should have been permitted to do so.

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