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Witness shield

ODPP proposes legislation to deal with fear of giving evidence

BY ALPHEA SAUNDERS
Senior staff reporter
saundersa@jamaicaobserver.com

Friday, February 22, 2019

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A proposal is being made to protect the identity of witnesses in criminal trials as the State grapples with more than 40 cases that have been affected by the fear of giving evidence in court.

The Office of the Director of Public Prosecutions (ODPP) is advocating a provision to be made in the Criminal Justice (Suppression of Criminal Organisations) Act 2014, which is now being reviewed by a joint select committee of Parliament.

Senior Deputy Director of Public Prosecutions Jeremy Taylor told the committee yesterday that outside of the anti-gang legislation, the hope is to create a separate general law to provide such protection to witnesses.

“We have proposed it here in the context of the Criminal Justice (Suppression of Criminal Organisations) Act, but we are actually hoping it will be a stand-alone legislation which may govern other offences, other than just criminal organisations alone,” he said.

Pointing to examples where lack of anonymity hampers trial proceedings, he noted that it is often the case in murder matters where the police take a statement written in a pseudonym, along with a sealed statement written in the witness's true name, but this only gives the witnesses some comfort until the trial date, which is when serious challenges arise.

“And then they are told we have to disclose the sealed statement, you have to come to court, or your face will have to be seen on video link to give the evidence because the law [says] the person has the right to see who is giving the evidence against them... this is where we get people backing out, people departing to parts unknown and the investigating officer can't find them. We find people running abroad illegally to escape this kind of thing. So we are hoping this legislation will be a game-changer,” he told the committee.

Later yesterday, the ODPP told the Jamaica Observer that currently there are 43 active cases categorised under Section 31D of the Evidence Act in the Home Circuit Court.

“Section 31D... allows the prosecution to put a witness statement in evidence in circumstances where the witness is dead, or cannot be located, or is kept away by fear. The prosecution has made several applications under this section where witnesses have expressed fear of giving evidence and have received threats against their lives and that of their family. We also do this where we are unable to locate our witnesses,” the ODPP explained.

“However, the court has a discretion to exclude the statement where it would be unfair to put in the statement due to the fact that the prejudicial effect of putting in the statement outweighs the probative value,” the State prosecutors' office added.

“What we are proposing is witness anonymity legislation such as you have in the Cayman Islands, The Bahamas, and the United Kingdom,” DPP Paula Llewellyn explained further.

“We will have to go before the court and lay out a justification why the interest of justice would be better served, and there would be no prejudice to the fairness of the trial and the right of the accused to a fair trail. The judge, as the impartial arbiter, examines the arguments and makes a decision,” Llewellyn added.

She said that it was not uncommon for prosecutors to be speaking with witnesses on the phone up to the day before the trial, then, on the morning of the trial, when they are expecting the witness, the individual doesn't turn up and their phone is turned off.

“The police will tell you that they went to the witness's home and nobody is there. So you have to understand that prosecuting these matters, especially in this 'informer fi dead' culture, is not easy,” Llewellyn said.

Earlier Taylor told the joint select committee that the current provision in the anti-gang legislation (Section 17) which speaks to trial proceedings and witness protection is interpreted as a 'restriction only' on how the trial is reported.

“It doesn't mean that the witness doesn't have to come into court and face the person, it's just that you can't report his name or any other identifying features. In our experience, we have found that the people do not even want to set foot in court… people do not want, even from a remote location, (for) their face to be shown to the person. It is a reality we are facing,” Taylor stated.

“We are suggesting that perhaps the Parliament can consider anonymising witnesses here, especially since we do have high rates of homicide which involve criminal organisation elements in this country,” he emphasised.

Committee member Peter Bunting explained that Section 17 of the anti-gang legislation had been intended to cover not only general witnesses but protect undercover law enforcement officers as well their families, particularly if the officer was to continue in the undercover role.

Attorney General Marlene Malahoo Forte said the proposal would have to be given deep consideration. She said there is cause for caution and concern, both on the part of the witnesses and the constitutional right of the accused to have his/her accuser face him.

She said that observing demeanour is part of the process in assessing the credibility of witnesses. “It is the finder of fact who has the duty to do that assessment… so it is critical that the judge is able to see and assess as part of the fact finding role of the judge. Within our system, much time is spent cross-examining, and a lot of the histrionics of a trial turn on how a witness presents himself. So if the recommendation were to be accepted we are going to be re-charting the course. But there are certain realities that we have to take into account and weigh what is going to tip the scale,” she said.

The attorney general also said she was uncertain as to whether providing for anonymity would equate to the accused being deprived of facing his/her accuser “in the sense of what is provided for in the constitution”, but that she understood the concern.

She indicated that the Law Reform Unit of the Ministry of Justice could examine similar legislation in other jurisdictions.


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