Case can’t go on if sole witness says he lied

The content originally appeared on: Trinidad and Tobago Newsday

(L-R) Chris Durham, Deon Calliste and Ian Sandy have been freed of murder after spending more than a decade in jail. Photo by Roger Jacob

NOTHING could be more damaging to public trust and confidence than if it was known that the Director of Public Prosecutions (DPP) was prepared to put someone on trial for murder when the only witness had admitted to lying.

So said Chief Justice Ivor Archie in an appeal of a novel judicial review lawsuit.

The Chief Justice’s observations were made in an appeal by the DPP against a judge’s order to stay the murder indictment against three men in 2019.

After spending almost a decade on remand, Chris Durham, Ian Sandy, and Deon Calliste were freed when Justice Avason Quinlan-Williams ruled that DPP Roger Gaspard, SC’s decision to continue the criminal prosecution of the men was not sensible, since the State’s main witness had admitted to fabricating crucial evidence.

Durham, Sandy, and Calliste were charged with murdering Mubarak Calder, 15, Mentie Murai, 19, and Kevon St Louis during a shooting at a bottle factory at Factory Road in Diego Martin on April 21, 2009.

As pre-trial preparations were being done before the trial judge, Justice Devan Rampersad, in the Port-of-Spain High Court, the State’s main witness, O’Neil Benjamin, allegedly told prosecutors he had fabricated his testimony, which was the only direct evidence linking the three to the crime.

Benjamin reportedly claimed he was willing to continue to lie at the trial as there was a drop in crime within his community after the men were charged.

After being informed of this, the men’s attorneys were able to get notes of the conversation between the witness and the prosecutors after Rampersad ordered its disclosure. The men then filed the judicial review claim questioning the DPP’s decision to continue the case.

Quinlan-Williams ruled in their favour and Rampersad eventually freed them, but her ruling was appealed by the DPP.

In a majority ruling on Monday, Archie and Justice of Appeal Peter Rajkumar dismissed the DPP’s appeal and affirmed the judge’s orders. They declared that the failure of the DPP to immediately discontinue the prosecution of the men on the charge of murder was unreasonable, unfair, and an abuse of process.

They also quashed the DPP’s decision not to discontinue the case and ordered that the indictments for the three be quashed.

Justice of Appeal Nolan Bereaux did not agree with the majority decision.

Archie chose to clarify his position, agreeing with Bereaux that the question of an accused receiving a fair trial was one for the trial court. However, he said in this case, there was a sole witness, who perjured himself.

“He has said that he will continue to do so at the trial. Even if he retracts his ‘admission’ there is no conceivable direction from a trial judge that can mitigate the risk of an unjust verdict.”

Archie said the difficulty with the DPP’s position here was when he acknowledged he could not decide whether the witness had lied at the preliminary inquiry or was lying to him now.

“In those circumstances, the DPP thought that the matter should be put to the test in court and determined by the finders of fact. That is a wholly inappropriate engagement of the court’s process,” Archie said.

“We are (and the DPP should be) about ‘protecting the process.’ The exercise of prosecutorial discretion is a part of the process. We must be able to trust that too,” Archie said.

He pointed out that Benjamin was not a hostile witness, so the law on how to treat such witnesses would not apply. In Benjamin’s case, Archie said if he changed his testimony at trial, and his previous statement were put into evidence, the State would be doing so with the full knowledge he has already rejected it in private. He also said any challenge to Benjamin’s testimony at trial could have resulted in prosecutors going into the witness box to “undermine a case that the DPP wishes to advance.”

Archie added, “No one who pays any serious attention to the Prosecutors’ Code could countenance a continued prosecution in these circumstances. We cannot secure a just verdict by a process that is patently and inherently unjust.

“The requirement for the DPP to exercise a considered discretion about whether to launch or continue a prosecution is an important procedural filter that ensures a fair system of justice. That responsibility is a nettle that must be grasped and not simply passed on to the court.”

He said also said what was “different” about this case was the “the lack of ambiguity about where the proper ethical and juridical course lies.

“We should not wait any longer to bring to an end a prosecution that is no longer tenable,” he said.

In his reasons, Rajkumar, who delivered the majority ruling, said there was “absolutely no basis” for the DPP to “ ignore the potential for an abuse of process by maintaining a prosecution solely on this self-confessed false evidence and placing it before a jury.”

Rajkumar also said it was one of those “exceedingly rare” situations where judicial review of discretion to maintain a prosecution must be permitted.

“At the moment when the prosecutors were informed that the evidence of the only eyewitness was fabricated and false, without which evidence there was no basis to continue the prosecution, the duty of the DPP was clear.

“It was an abuse of the court’s process to maintain a prosecution on the basis of that evidence,” Rajkumar said.

In his dissenting reasons, Bereaux held Quinlan-Williams was “plainly wrong” in her findings, and the DPP’s decision to continue prosecution was consistent with his constitutional duty and discretion under section 90 of the Constitution. He said there was nothing exceptional in this case that could not be dealt with at trial.

“The prospect of future witnesses changing their accounts privately to prosecutors, after having given sworn evidence in the magistrates’ court, looms large here.

“Any witness doing so should be confronted with their inconsistency, in open court, at the criminal assize and then face the likelihood of a perjury charge in that event,” he said, faulting the majority ruling, and holding that the trial judge had usurped the DPP’s functions.

The DPP was represented by Senior Counsel Ian Benjamin, along with attorneys Keston McQuilkin, Ebo Jones and Sean Julien. Representing the three men were Gerald Ramdeen, Wayne Sturge and Dayadai Harripaul.

When the men were freed in 2019, they called for an independent review of all the hundreds of murder cases currently awaiting trial, as their case was not unique.

“Don’t feel that because it have men charged for things, that they did it. In the court, they (the prosecution) cannot prove it,” Calliste said, lamenting the slow pace of the criminal justice system.

Durham drowned in October 2020 after he slipped into a river at Dillon Street, Diego Martin, which searching for his pet parrot.