Go free, Mr Bicknell, but not so fast, Mr Vaz



Sunday, July 20, 2014

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Plumbers do not refer to their fellow plumbers as 'my learned friend', and neither do auto mechanics with each other. My mechanic sometimes refer to me as 'my learned friend', but one suspects that he has spent too much of his time working on lawyers' cars, plus, he probably believes that I need a stoking of the ego, and if he does it I will gladly pay him an extra few thousand dollars for his excellent work.

My mechanic is both professional and solidly Anancy.

Highly skilled neurosurgeons do not call their fellow surgeons 'my learned friend'. Neither do investment bankers, economists, chartered accountants and financial consultants exchange the terminology, although quite a few of them have taken neurosurgeons to the cleaners.

I make the point because highly experienced lawyers in whatever specialty are usually pretty bright people and, like politicians who have conspired, with the assistance of a sleeping population, to dub themselves 'honourable', all lawyers refer to their colleagues as 'my learned friend', or 'my learned colleague'.

Apparently they have studied group theory and concluded that this constant push-pull of the ego within the group does essentially two things. It empowers those within it and, at the same time defines those outside the group as 'unlearned'. So, you unlearned, listen more and if you have to speak, do it someplace else!

Thus, it is easy for a lawyer to make the early conclusion that a layman is basically a professional idiot knowing little in the way of logic, and worse, the layman harbours a desire, at the subconscious level, to become a lawyer.

I have said all of that in relation to a July 17 press release from the Office of the Director of Public Prosecutions 'Re: Reasons for the Director of Public Prosecutions (DPP) declining to proceed with the prosecution of R v David Bruce Bicknell for breach of the Corruption Prevention Act and proceeding with the prosecution of R v Daryl Vaz, MP for breach of the Corruption Prevention Act.'

For the 'unlearned' among us, including myself, I am making the assumption that the R refers to Regina or the Crown, that relic of authority still present in our courts and best expressed by a constable declaring, 'God Save the Queen' just before the start of court proceedings. In Jamaica. In 2014.

According to the strange logic of the DPP, and we know that Ms Llewellyn, QC is quite learned and not prone to adopting the tools of illogical thinking: 'Having thoroughly perused the notes of evidence in the matter and discussed the issues in the trial with the lead prosecutor, the matter against Mr Bicknell and Senior Superintendent James Forbes, as well as considered the relevant law on the issues pertinent to the prosecution of the matters existing against Mr Bicknell and Mr Vaz, I am declining to proceed against Mr David Bruce Bicknell in relation to the charge of breach of the Corruption Prevention Act. I have, however, decided that the Crown will proceed with the matter against Mr Daryl Vaz, MP, for breach of the Corruption Prevention Act.'

The DPP then states: 'I hereby outline the reasons for my decision with respect to each individual. This course is being adopted in order to provide clarity in the public domain for what have been very high public interest matters.'

This is where 'clarity' takes on a whole new meaning.

If we can recall the allegations were that Mr Bicknell, a wealthy businessman, had attempted to bribe a policeman, one Sergeant Llewellyn (no relation to the DPP) with $2,000.

'(i) Sergeant Llewellyn was unable to settle on the chronology of events and the words uttered by Mr Bicknell.

'Sergeant Llewellyn had a significant evidential challenge in Court deciding on the actual words that were uttered by Mr Bicknell to him on the 9th April, 2012, which initially caused him to form the view that he was being bribed by Mr Bicknell.

(ii) Sergeant Llewellyn expressed uncertainty as to whether Mr Bicknell tried to bribe him.

'In cross-examination by Mr Knight, QC, Sergeant Llewellyn agreed that he had expressed uncertainty on at least two occasions that Mr Bicknell was trying to bribe him.'

Further in the release it states:

'Sergeant Lewis, the investigating officer in the matter, also stated further in cross-examination that "it was clear that (he) would not have the evidence to proceed with a bribery charge".'

To cap off the matter on not proceeding against Bicknell, the learned DPP states in the release: 'Based on these factors, it is clear that not only would it be impossible for the Crown to establish the vital elements of the offence in respect of Mr Bicknell (the making of an offer or grant by Mr Bicknell and an intention to corruptly make this offer), but the credibility of Sergeant Llewellyn, the complainant in the matter, has been materially affected.

'Consequently, there is no reasonable prospect of a successful prosecution, as in this case the Crown would not be able successfully to resist a no-case submission made by the defence at the end of its case.'

Remember the terminology used, '...not only would it be impossible for the Crown to establish the vital elements of the offence in respect of Mr Bicknell...' Log that in your mind.

Then comes the finale, but there is no crescendo, no expected flourish. We must remember that this is no final judgement, only a press release. But it has all of the elements of a pesky afterthought.

'Reasons for proceeding with the prosecution of the matter against Mr Daryl Vaz, MP'

(1) 'The prosecution, in conducting the matter against Mr Bicknell for Attempting to Pervert the Course of Justice, was careful not to elicit any evidence relative to Mr Vaz's matter. Therefore, the fact that a no-case submission was upheld in relation to the case against Mr Bicknell is not a determinative factor as to whether the case proceeds against Mr Vaz.

(2) 'The case against Mr Vaz has to be determined on its own merits because, while it arose from the case against Mr Bicknell, it is constituted on substantially distinct facts as it pertains to a meeting between himself and Sergeant Jubert Llewellyn on the 12th April, 2012.

(3) 'This case is one which essentially depends on the assessment of the credibility of Sergeant Llewellyn by the tribunal of fact in relation to the meeting between himself and Mr Vaz. It is trite law that the tribunal of fact can accept a part of a witness's evidence and reject a part.'

And the release ends.

I am, of course, no 'learned' attorney-at-law, but the release has given us a brief insight into the credibility of the witness, Sergeant Llewellyn, and by the DPP's own admission, it was suspect to the point of being considered, 'impossible for the Crown to establish the vital elements...'

So, the very same witness who was seen to be too unreliable to the point of 'impossibility' has morphed into one where, 'It is trite law that the tribunal of fact can accept a part of a witness's evidence and reject a part.'

How does one make the decision which part to accept and which to reject? Will they be throwing dice in the courtroom? Playing 'eeni meenie miney mow' to arrive at a just decision?

One would have thought that once that witness proved himself to be unreliable in a particular matter, in just about everything else hinging on the same subject, the same matter, his word would be worth little more than mud.

The press release from the DPP has more elements of socio-political tweaking than any attempt of the application of law grounded in logic.

Or, let me put it bluntly: The public has seen a member of the rich white class freed, while Vaz, a politician and member of the powerful and influential brown class, needs to be collared, according to the logic outlined in the press release.

The public needs to be placated. That is going beyond law. The DPP is into social engineering and probably much more than was learned in law school and in the courts. But, of course, we mere 'unlearned' mortals will never fathom her high level of thinking. She needs to blinker herself from everything else except justice.

— observemark@gmail.com





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