Witness’s character called into question

In a motion calling on the court to free three lawyers and a bailor charged with conspiracy and fraud, attorney Israel Khan SC said yesterday that it will be indecent and unfair to prosecute these men in the circumstances of the case.

He submitted that an accomplice who participated in a crime cannot corroborate the evidence of another accomplice, which is the circumstances of the case before the court. He cited several authorities to support his argument. On calling on Justice Prakash Moosai to stay the proceeding against the four men, Khan recalled that one of the State’s key witnesses against the four accused was considered a “person of bad character” in another case by former Director of Public Prosecutions (DPP) Mark Mohammed.  And as a result, Mohammed had to stop prosecution in that matter which was against a Justice of the Peace (JP).

Khan submitted that the then DPP had nolle prosequi the JP matter because the same witness, who is an accomplice/ witness against the lawyers, was also an accomplice/witness in the JP matter, and that there were no independent witness to corroborate that evidence. Added to that, the witness had also had gone to jail and had some 35 convictions recorded. Khan further contended that the same situation having subsist in the present case, the present DPP Geoffrey Henderson should also stop the prosecution of attorneys Yaseen Ali, Mervyn Mitchell, Ken Wright and bailor Patrick Hannibal in the interest of  public policy. The four are charged with conspiracy to pervert the course of public justice by using a false deed to secure bail for Maximo Jose Gonzales, a Venezuelan on a drug charge.

Khan  admitted that Henderson could opt  not to use the “bad character” witness at this stage and continue with the matter. But he added that such a move will be adding insult to injury, noting that the DPP had already used the witness to arrest the lawyers and to secure a committal to stand trial. Khan believes that such a move will definitely amounts to manipulating the process of the court. He said the unfolding of the evidence in the present case reveal that two witnesses/accomplices had an interest to serve and that they were granted immunity for their testimonies against the accused.

At this point, senior State prosecutor Wayne Rajbansie, assisted by Natasha George, responded to a question by Justice Moosai, admitting that immunities were granted to the witnesses. Khan had also asserted that there was no evidence for his client Ali to answer the charge of conspiracy. Attorneys representing the other accused had earlier submitted that the way the charge against their clients was framed was duplicitous and unknown to law. They also adopted Khan’s argument on his motion to stay the proceedings.  

Responding to defence arguments on Friday, Rajbansie yesterday said that the count was not duplicitous and explained that duplicity in a count is a matter of form and not evidence. To ascertain whether a conspiracy count is bad for duplicity it is ordinarily unnecessary to look further than the count itself. He said, the charge in its present form only speaks of one conspiracy and that a count on an indictment should contain sufficient particulars as may be necessary for giving reasonable information as to the nature of the charge. 

He further argued that the defence contention that the amended charge of date to October 31, 1996 on the indictment was oppressive, was without merit because two witnesses had alluded to the period November and December as to when they were solicited and actually performed their respective roles in the unlawful enterprise. He said Khan’s contention that Ali never came into contact with the other conspirators and therefore there is no nexus between his client and the other defendants, is devoid of legal authority. Rajbansie also submitted that the agreement to effect a common object is usually an inference to be deduced by the jury from the acts of the alleged conspirators in the furtherance of their purpose. When hearing resumes tomorrow, Rajbansie will have to respond to Khan’s submission on corroboration of an accomplice’s evidence.