Way cleared for Keith Clarke case to proceed, but defence will appeal

Director of Public Prosecutions (DPP) Paula Llewellyn and defence lawyers in the Keith Clarke murder trial yesterday locked horns over the defence’s request to place the hearing on hold pending an appeal.

The long-awaited murder trial involving Corporal Odel Buckley, Lance Corporal Greg Tinglin and Private Arnold Henry, which was scheduled to start Monday morning, was in the end adjourned to April 29 due to a shortage of jurors.

But when the matter was called up, King’s Counsel Valerie Neita-Robertson advised the court that the defence had filed an appeal and was waiting for DPP Llewellyn to be served. Consequently, she asked that the proceedings be stayed.

However, Llewellyn, who vociferously opposed the stay, described the defence’s action as an abuse of process.

“We are rather taken aback that King’s Counsel, given the clear ruling of the Court of Appeal, would not only have sought to appeal Your Lordship’s ruling but also to wait until today to do so.

“And it is our view that it is a frivolous and vexatious action on the part of the defence and in fact it is an abuse of the process of the court,” Llewellyn said.

Continuing, she said, “This action, in the face of the Court of Appeal’s clear ruling, to go to the Court of Appeal today on the same day of the trial is a very cold attempt on the part of my learned friends and very unfortunate action to thwart the end of justice and I am very disappointed.”

However, Llewellyn, while declaring that “ the Crown back is very broad, asked Justice Dale Palmer to honour and reaffirm the court’s ruling that the case proceed to trial.

Following a voir dire, Palmer earlier this month ruled that the immunity certificates, which the defence is contending protect their client against prosecution, could be challenged by the prosecution and affirmed the Court of Appeal’s decision for the matter to proceed to trial.

The Court of Appeal in January, in striking down a Constitutional Court order which had ruled that the certificates were invalid, also ordered the voir dire, a trial within the trial, be conducted to determine whether the DPP “can rebut the certificates of good faith issued by the minister”.

The certificates were signed by former Minister of National Security Peter Bunting in February 2016, nearly six years after Clarke’s death and four years after the soldiers were charged with murder.

Llewellyn, in opposing the stay, also pointed to the Court of Appeal ruling which stated that the matter should proceed to trial after the voir dire. She argued that, given the appellate court ruling, Palmer had no power to grant the stay.

Describing Llewellyn’s comments as a personal attack against her, Neita-Robertson sought to explain to the court that the judgment was only received on April 9 and that the defence was left with little time to prepare the appeal matter, which has never happened in the jurisdiction before.

“I don’t know if Ms Llewellyn is so nervous that she is of the view we ought not to have this matter clarified elsewhere and for us to challenge, with the greatest of response, Your Lordship’s decision,” she said while insisting that the accused is entitled to have the matter heard in the Court of Appeal.

Neita-Robertson further pointed out that the former DPPs, with whom she had interacted during her 40-plus years of practice, would have granted the “the usual courtesies” that are granted when counsel signal their intent to appeal.

UNFORTUNATE

Llewellyn, in a further address to the court, said it was unfortunate that Neita-Robertson, who she claimed should know better, would seek to ask the judge to make an order that the Court of Appeal should properly make.

While highlighting that the matter is 12 years old, she stressed that there was no stay and that granting a stay would be inimical and would undermine the interest of justice.

“The Crown cannot allow itself to subjugate itself to what is a cold and callous attempt by my learned friend,” she said.

A slightly peeved Neita-Robertson quickly interjected, saying, “My Lord, I take objection to these slurs being directed to learned counsel. We are counsel. Ms Llewellyn must stop this nonsense. In any event, she addressed you, I responded, now she is giving another address.

“When are we going to stop to consider what is fairness in these courts? When is fairness going to be recognised by all the stakeholders?” she asked.

“My Lord, if my learned friends felt offended in any way, I’ll withdraw the words, cold and callous, but it cannot be that fairness is only for the accused,” Llewellyn said as Neita-Robertson quipped “If, if.”

Chiming in, King’s Counsel Peter Champagnie said that some of the statements were very unfortunate and would be prejudicial to the accused and invited Llewellyn to unreservedly withdraw her comments.

Linton Gordon, for his part, said the short period between obtaining the judgment and preparing the appeal must be taken into account and that “any invitation to the court to bulldoze the rights of the accused, cast them aside and proceed, cannot be the traditions and customs that we want to keep in our system”.

The judge eventually ruled against granting the stay but adjourned the matter to April 29 due to the shortage of jurors. Only 18 were present and a minimum of 40 jurors were required.

Before arriving at the date, the judge had set a May 6 trial date but the DPP objected, stating that this would affect the evidence of a witness who is migrating and will not be available. She suggested that the matter be set for next week Monday.

The defence however stated that the Crown had the option of agreeing on the witness statement or to take the witness’ evidence via video link and gave an undertaking to consider agreeing on the statement.

In the meantime, the Crown was served with the notice of intent to appeal shortly before the matter adjourned.

tanesha.mundle@gleanerjm.com