Appeal Court policy coming
Chief Justice Satnarine Sharma yesterday noted that in order to solve a heinous crime and bring the perpetrators to justice, one would sometimes have to get witnesses from the belly of the underworld. In the same breath, he warned that the moral integrity of the criminal justice system is to ensure that the guilty are punished and the innocent go free. And in order to achieve this, sometimes, in extreme cases, witnesses from the belly of the underworld would have to be used. However, the court must be careful how immunity is granted and must look at it in terms of policy — perhaps a necessary evil to punish the guilty rather than let them go free. Sharma made the points when the issue of whether the court has the discretion to exclude the evidence of an accomplice witness called on behalf of the prosecution, who had been granted conditional immunity from the Director of Public Prosecutions (DPP), came up before the Appeal Court yesterday. This became a live legal issue when Justice Herbert Volney refused to hear the evidence of a killer who was granted conditional immunity by the DPP, so that he could testify against his secondary accomplices. As a result of the judge’s decision, the three accused were set free. In order to deal with such a recurrence, the Attorney General (AG) asked the Appeal Court to intervene and determine the matter. The AG’s request to the court was by way of filing what is called an AG reference. These references, after adjudicated upon, are treated as law. If the Appeal Court says yes, then it will also have to say what factors and circumstances may give rise to the exercise of such discretion. The court may further have to answer, if a discretion exists in a trial judge to exclude the evidence of an accomplice witness, whether such a discretion is limited and should be exercised sparingly, and only in the most extreme circumstances. At yesterday’s hearing before Sharma and Justices Stanley John and Allan Mendonca, the parties involved were not notified of the hearing date, and the matter had to be adjourned to a date to be fixed. Special prosecutor Dana Seetahal indicated that the onus was on the court to summon the parties. This point was further reinforced by Queen’s Counsel Karl Hudson-Phillip, who represented the Law Association, which was invited by the court to make a contribution on the issue since it was of great public importance. Assisting Hudson-Phillip, a past president of the association, were secretary of the association Patricia Dindyal and member Ravi Rajcoomar. Hudson-Phillip pointed out the relevant sections in the Act, noting the requirement to keep the names of those acquitted anonymous. This means that the names of those set free cannot be published in the matter, unless the court gives permission. However, their initials could be used. The reasoning was that these men were already set free and the court did not want to give the impression that there was an appeal or any such matters pending. Seetahal recalled that this could be the third time an AG reference was filed in court, but the first time one was actually listed and about to be heard. She commended the court for listing the matter, especially in such a short time since it was filed on December 30, 2004.
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"Appeal Court policy coming"