Fair trial or retrial?

The Court of Appeal says the prosecution must explain why Vybz Kartel and his three co-accused should be retried for the 2011 murder of Clive Williams when they have already suffered multiple constitutional breaches in the previous trial process.

Justice Marva McDonald-Bishop, who is leading a three-judge panel that will decide whether the men are to be retried, yesterday raised the question after defence lawyer John Clarke argued that breaches of the men’s constitutional rights and pending breaches are factors to be taken into consideration in not ordering a retrial.

Clarke stressed that the men’s right to a fair trial would be breached if the retrial were to be allowed.

The panel, which includes Justices Paulette Williams and David Fraser, will hear arguments from the defence lawyer and the Crown over five days.

Adidja ‘Vybz Kartel’ Palmer, Shawn ‘Shawn Storm’ Campbell, Kahira Jones, and Andre St John were convicted in March 2014, and their convictions were upheld in 2020 by the Court of Appeal.

However, on March 14, 2024, the United Kingdom-based Privy Council, Jamaica’s final court of appeal, overturned the convictions on juror misconduct grounds and remitted the matter to the Court of Appeal for it to decide the retrial issue.

INFRINGEMENT OF RIGHTS

Responding to a question from McDonald-Bishop as to whether the Privy Council had expressly stated that the men’s rights had been breached, Clarke quoted a portion of the judgment, which read that there was an infringement of the appellants’ rights to a fair hearing by an independent and impartial court in accordance with Section 16 (3) of the Constitution.

Noting that that right was two-fold, the judge said there was a right to be tried by an independent and impartial court and another right to be tried within a reasonable time.

“So the Crown will have to tell us, in the light of two breaches of the fair trial provision, if we should have a retrial if that is in the interest of justice, and is that demonstrably justified?” she said.

The judge further asked, “So what remedy do you give that person if their constitutional right has been breached twice?”

McDonald-Bishop also stated that given the interference with that right, the Privy Council should have addressed the issue of whether the breach was demonstrably justified.

Clarke, however, further argued that retrial should not occur if the defendants will be returned to a worse-off position and that a retrial would likely result in their rights being violated again.

ARGUMENT

He also noted that issues such as the current long list or criminal matters in the Home Circuit Court must also be considered as well as the delay that a retrial would cause for other defendants, who would be required to spend a longer time in jail as there are no designated retrial courts.

Additionally, Clarke said, “At a certain time, the length of time alone should be sufficient to say we are drawing the line in the sand.”

Regardless of the complexities of the case and other factors, he acknowledged that there was a certain threshold that had been passed in the matter.

But with all those factors, Clarke said, “And there is still going to be prejudice, and in considering the ordeal to the accused, the prolonged and complex nature, which must be considered, would also militate by itself against ordering a retrial.”

Clarke further submitted that “the courts in the Caribbean generally have always given credence rightly to state resources constraints, and in giving such credence to state resource constraints, we may unwittingly be allowing a certain environment to foster in the courts.”

“And giving credence to that excusing state resources may very well allow persons to say 13 years is ok, we can drag our feet, let’s make it 16 years and that is a country we don’t want to live in,” he added.

tanesha.mundle@gleanerjm.com