PAPER TRIALS for Murder: The Impact on Justice

In criminal trials, witnesses normally provide evidence by going into the witness box and testifying. However since 2015, the amendment of the Evidence Act to include Section 31 makes provision for the statements of witnesses to be admitted in evidence even when the witness cannot be found or is unavailable.

Subject to Section 31G of the Evidence Act:

A statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible, if it is proved to the satisfaction of the court that such person —

(a) is dead;

(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;

(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;

(d) cannot be found after all reasonable steps have been taken to find him; or

(e) is kept away from the proceedings by threats of bodily harm, and no reasonable steps can be taken to protect the person.

The effect of this is that statements given to police during investigations of a crime, are now allowed to be read into evidence as the Witnesses “Examination-in-Chief”, in a trial once the conditions have been satisfied. This however means that the Defence does not have the opportunity to cross-examine the relevant witnesses which was previously the norm.

The right to cross-examine persons who have made statements against your innocence is an important and fundamental part of our criminal justice system. It is true that there are several cases which have stalled indefinitely due to an unavailability of witnesses who initially gave statements, however it is my opinion that in ensuring a fair trial, paper trials are subtly trampling on the rights of the accused to confront their accuser in a fulsome manner.

Section 15 (6)(d) of The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 states:

(6) Every person charged with a criminal offence shall­: 

(d) be entitled to examine or have examined, at his trial, witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The scope of Cross-Eamination covers topics asked in E
xamination-in-Chief and also questions on witness credibility. Witness credibility questions essentially questions the case put forward by the crown or witness and questions whether the witness is telling the truth. Questions on integrity, bias and capability are allowed.

The Defence is allowed to suggest their case during Cross-Examination and put their scenario of what happened to the witness. The Defence case must be put to the relevant witnesses and failure to cross-examine leaves the evidence of the relevant witness unattacked.

“The objects sought to be achieved by cross-examination are to impeach the  accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examining party.”

Paper Trials place the Defence in a precarious position in ensuring that their case is effectively put, as Cross Examination is limited. This thus forces the hand of the Accused who in a trial has three options- they can choose to remain silent, make an unsworn statement from the dock or they can choose to testify from the witness box.

Many feel compelled to enter the witness box opening themselves up to cross examination when they were not able to cross examine the Prosecution witnesses. The demeanor of the Accused is open for observation to the jury and the scales are automatically tipped in favour of the prosecution.

Paper trials are completed quickly, however coupled with the 7 member jury which is in place for non-capital murder offences, the odds are swayed in favour of the prosecution in getting convictions. Especially in cases with many years of delay, the Defence also faces severe hardships in locating witnesses who can assit their case, as persons migrate or lose interest. So the longer that the case takes to be tried, the weaker the Defence case becomes.

The backlog which exists now will be reduced significantly by Paper Trials-but to what effect? Justice in a court of law in a murder case occurs when the relevant and admissible evidence or facts are considered by a jury and they come to a conclusion based on the evidence presented. In a case where the punishment is life imprisonment, I submit that the standard should be higher and not lower in relation to the type of evidence that is made available to the jury for the determination of  guilt or innocence. If the relevant evidence is not put before the jury then how then can we truly say that Justice has been served?

You find yourself arrested- Now What are your Rights?

Worst case scenario you find yourself arrested, there are a few key things that you keep in mind. Regardless of your social station they are certain rights that you have as your liberty or freedom is taken from you. Ghetto youth or not- The rights remain the same across the board.

In order to effect an arrest on anyone under the Constitution of Jamaica the police should have  a warrant, which would indicate that the person is wanted for a crime, or the police may have reasonable and probable cause that the person has committed an offence and even without the warrant can effect an arrest.

The Charter of Fundamental Rights and Freedoms(Constitutional Amendment) Act, 2010, which significantly changed Chapter III of the Constitution, confers rights that many persons do not know about so when the rights are violated it is accepted through ignorance and many stay in jail for longer periods than absolutely necessary.

Any person who is arrested or detained shall have the right­:

(a) "to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;"

The word “and” is instructive, as relatives don’t know that they have a right to visit their incarcerated loved one in order to ascertain their status. Information may be difficult to get from police stations, but this should not be. This is a right- detainees should not be begging for calls in order to communicate with loved ones.

(b) "at the time of his arrest or detention or as soon as is reasonably practicable, to be informed, in a language which he understands, of the reasons for his arrest or detention;"

The reason for being locked up, shouldn’t be a guessing game for the detainee, some as repeatedly what the reason is and can’t receive an answer. Once detained police may have reasonable suspicion in order to hold a person behind bars, however some persons are kept behind jail for weeks- months and the reason for detention changes like the wind before they are either charged or released.

(c) "where he is charged with an offence, to be informed forthwith, in a language which he understands, of the nature of the charge;"

English is our first language however patois is the main tongue for many. In describing the nature of the charge, officers should ensure the person understands, breaking it down where necessary. It is the person’s right. Literacy is so tricky in Jamaica. So many persons are functionally illiterate. They can spell their name and address or they really are not familiar with many “normal” or "everyday" words and have difficulty grasping the English Language.

(d) "to communicate with and retain an Attorney-at-law."

If you can’t afford a lawyer, Duty Counsel or a Legal Aid Lawyer should be appointed to you.  Where a Question and Answer session is conducted by the police or the giving a Caution Statement is to be done( where detained person gives a comprehensive statement of incident to police) INSIST THAT A LAWYER IS PRESENT. Police Officers will use 2 JP’s as permitted, however with no legal advice, this is a road that many regret walking when they eventually retain counsel. What a Lawyer may object to, may slide through in an interview without one.

The Constitution provides that a person should not be arrested without charge for  more than 24 hours, but the standard practice is 72 hours. ( It is said with so much authority that there must be precedent that I am not aware of which must trump the constitution-smh)

The waters become even more muddy where police say a detained person is scheduled to go an ID parade- weeks to months without charge is possible, as if an application for Habeus Corpus (order to release the detained person who has not been charged within a reasonable time) is made to the RM Court in lieu of the ID parade to get release- The attorney may be told that the parade should be conducted first. Attorneys instead of going to the RM Court may go to the Supreme Court in order to get the person released if not charged. So persons without Attorneys sometimes fall through the cracks and are incarcerated without charge way longer than they should be.

Chapter III of the Constitution states that someone detained and charged should be taken before the court without delay. It is also stipulated that the suspect shall be released if not tried within a reasonable time.

Please note that the Charter of Rights also state that you are entitled to

·        the right to equality before the law;

·        the right to equitable and humane treatment by any public authority in the exercise of any function;  (No box down from police is acceptable- The Charter speaks further to the right to protection from torture, or inhuman or degrading punishment )

·        the right to freedom from discrimination on the ground

o    being male or female;

o   race

o   place of origin- Tivoli vs. Beverley Hills. There should be no difference in treatment.

o   social class,

o   colour,

o    religion

o   political opinions- JLP or PNP it shouldn’t matter or even NDM

I would love to include sexual orientation as those charged with offences such as buggery, sometimes face  a warm time- as enough care may not be taken to ensure that the charge is not made accessible to other detainees.

Earlier I indicated police must have reasonable grounds to take a person into custody. Under the Charter please note:

No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances-­

(a) in consequence of his unfitness to plead to a criminal charge;

(b) in execution of the sentence or order of a court whether in Jamaica or elsewhere, in respect of a criminal offence of which he has been convicted;

(c) in execution of an order of the Supreme Court or of the Court of Appeal or such other court as may be prescribed by Parliament on the grounds of his contempt of any such court or of another court or tribunal; The Charter of Fundamental Rights and [No.] 9 freedoms (Constitutional Amendment) Act. 20 II

(d) in execution of the order of a court made in order to secure the fulfillment of any obligation imposed on him by law;

(e) for the purpose of bringing him before a court in execution of the order of a court;

 (f) the arrest or detention of a person­

(i) for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or

(ii) where it is reasonably necessary to prevent his committing an offence;

(g) in the case of a person who has not attained the age of eighteen years, for the purpose of his care and protection;

 (h) the detention of a person­

(i) for the prevention of the spreading of an infectious or contagious disease constituting a serious threat to public health; or

 (ii) suffering from mental disorder or addicted to drugs or alcohol where necessary for his care or treatment or for the prevention of harm to himself or others; or

(i) the arrest or detention of a person­

(i) who is not a citizen of Jamaica, to prevent his unauthorized entry into Jamaica; or

(ii) against whom action is being taken with a view to deportation or extradition or other lawful removal

KNOW YOUR RIGHTS!!

Understanding Self Defence from a Legal Standpoint

Self defence is a complete defence of justification in cases involving all levels of assault. At common law the defence off self-defence operates in three spheres. It allows a person to use reasonable force to:

(a) Defend himself from an attack
(b) Prevent an attack on another person,
(c) Defend his property

Right to defend yourself

Section 23 of The Firearms Act clearly permits the holder of a licensed firearm to discharge said firearm within or about a public place, not only in the lawful protection of his own person or property, but also in the lawful protection of the person or property of others.

It is instructive to note, however, that the protection of life or property has to be lawful. The case law appreciates that the licensed firearm holder who discharges his firearm to protect life or property may not have had time to make entirely rational decisions, given all the circumstances of the particular case; however, even allowing for mistakes made in a crisis, the amount of force must be proportionate and reasonable.

The general principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonable or not).

It is important to note:

                      a) A person who is being attacked should not be expected to 
                   "weigh to a nicety the exact measure of his necessary 
                    defensive action".

b) If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.

c)A jury will be told that the defence of self-defence will only fail if the prosecution show beyond reasonable doubt that what the accused did was not by way of self-defence.

Excessive force

The issue of a mistake as to the amount of force necessary was considered by the courts  and the law is:"They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable."

No duty to retreat

There is no rule of law that a person attacked is bound to run away if he can. A demonstration by the defendant that at the time he did not want to fight is no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances act without temporising, disengaging or withdrawing; and he should have a good defence

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in standing his ground to defend himself, or whether the reasonable man would have taken the opportunity to run away.

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

Mistake as to Self- Defence

It is possible that a defendant might mistakenly believe himself to be threatened or might mistakenly believe that an offence is being committed by another person, it would appear that such a defendant would be entitled to be judged on the facts as he honestly believed them to be, and hence would be permitted to use a degree of force that was reasonable in the context of what he perceived to be happening.

In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.

If however the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury came to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

The reality of self -defence in a murder charge

1) It is very difficult for juries to accept this defence in cases where the person who is harmed/killed does not have a weapon or is not armed.

2) The option of manslaughter is often left to the jury which states that the accused did not have the intent to take a life or cause greivous bodily harm (no malice aforethought) but the killing was unlawful.

2) Licensed firearm holders are not automatically protected from murder or manslaughter charges as using a weapon may appear as using excessive force and will be interpreted as being unlawful by the jury.

3) Licensed firearm holders have a great responsibility, and should think twice about discharging their weapon, if under threat, even though the law makes provision for their subjective mind or what they perceive.

June 3, 2016

FALSE RAPE CLAIMS: The stories that are never told...

by: Kymberli Whittaker

“Rape”  is such a dirty word. It connotes feelings of anger, rage and condemnation once uttered or even implied, and with good reason. Rape is an act so abhorrent that it shifts power from the victim to the person committing the act. Rape is about power, men know this and women know this as well.

We warn our females to be careful and try to avoid situations when possible to avoid assaults (as far as it is possible- women are not responsible for being raped EVER), but what about our men.  The sad reality is that men may find themselves at the centre of a false rape accusation and these men are blind-sided as their world turns upside down.

 The truth is some women may choose to lie about rape for different reasons- Men read, learn and protect yourself. Here are a few reasons:

1) To hide consensual sex from a family member or spouse

Shame is a hell of a thing. Some persons instead of admitting when they have fallen prey to their emotional desires or sexual feelings, will lie, cry, and plead the blood of Jesus against their consensual  partner in a tryst.

How could a woman fall for her gardener? How could the person who attends church religiously with their family, have sex with a man of cloth? How could a student willingly admit that she slept with their teacher for good grades to her parents who have sent her to school?

Once discovered by a third party, a woman may blurt out rape, or be pressured to say that they have been violated to alleviate the shame felt from the sexual association. Men if you have more to lose than the woman when having sex- Walk away!

2) “Hell hath no fury like a woman scorned.”

When breaking off a relationship, tact is not a bad thing. Vindictiveness spawned by a bad break up is a common factor that should actually leave men quaking in their shoes. Men, in situations where you are plainly wrong, such as cheating, abuse, etc- You leave yourselves vulnerable and open to attack.

Rape is a crime that often rests on credibility- it is hard to disprove even with physical proof of sex whether a woman has been raped, because there is a mental element of consent, or lack thereof that is essential for the act to be considered a crime . A “Tough back” man is no match for a crying woman on the stand in court. Men embattled in a divorce, beware! Are you fighting for custody of your kids when you have moved on and have a new girlfriend or baby momma? Beware!

“Payback is really a *****”- And the false rape claim is seen as justified punishment for a wandering spouse.

3) The woman is unstable or is a chronic liar

Sex is not going anywhere. Men before jumping into bed, find out more about the person you would like to bed.  A first name and marital status is not good enough. Some ppl are crazy and some others are simply waiting for the opportunity to bed someone of influence so that they can use the art of blackmail to get what they want. Dating before sealing the deal is not a bad move- you may save yourself the trouble of being labeled as a sexual predator in the future.

Women can use a rape claim to their advantage. Remember that once a report is made, you are arrested by CISOCA with no immediate prospects of bail. The more gruesome the details given by the woman, the lesser your chances of receiving bail within a couple months.

Jamaica doesn’t test for DNA to prove that sex with an accused person did not occur- Do not be fooled by these crime shows on TV- doesn’t apply in our context, so it is harder to eliminate a man as a suspect once the accusation is made

Even if you beat the charge, being accused of rape attaches a stigma or stench to your name that is near impossible to get rid of.  Men take heed and beware!

kymberli.whittaker@gmail.com