The conditional release of seven men accused of murder and other crimes last week has triggered a legal debate between a defence attorney and prosecutors about abuse of process.

Peter Champagnie, QC, whose client Andrew “Livity” Coke is the brother of incarcerated former Tivoli Gardens strongman Christopher “Dudus” Coke and one of the seven accused men, said he shared the concerns voiced by Supreme Court Justice Leighton Pusey in respect of the seriousness with which matters such as trial date certainty are dealt with.

Champagnie voiced his concern on Thursday after Justice Pusey granted a conditional nolle prosequi to discharge the seven, citing a lack of evidence as the Crown’s main witness cannot be found.

The seven — Iesha Jones, Andrew Coke, Lanchester Coke, Michael Coke, David Biggs, Delmarco Cephas and Wayne Page — are accused of being part of a criminal organisation face charges ranging from murder, conspiracy to murder, illegal possession of firearm and ammunition in connection with the death of 31-year-old Patrick Davis, otherwise called Pee Boy, whose body was found in Rockfort, Kingston, on Monday, March 12, 2018.

Although they have been released, they still have the charges looming over their heads given that the entering of a nolle prosequi is not an acquittal, therefore the Director of Public Prosecutions (DPP) has the power to re-indict the matter.

Champagnie told the Jamaica Observer that the judge was not suggesting any impure motive on the part of the Office of the Director of Public Prosecutions, but was concerned that the conditional nolle was something that is occasioned by instances where people who match the witnesses and their availability don’t take it seriously enough.

“This is where I take off, because I, as counsel for Mr Coke, and indeed on behalf of the others, I think this points to the fact that we need to have specific legislation as it relates to abuse of process,” Champagnie said.

“There are certain times when, for instance, this problem comes up in the parish court and the view of the parish court is that they don’t have the jurisdiction to deal with it and it is a matter for judicial review or for another court. I believe that if you have specific legislation dealing with trial certainty and, in particular, abuse of process, counsel at whatever level and stage would take the point and there would be strict guidance because, as the trial judge pointed out, although there are constitutional powers that are given to the Office of the Director of Public Prosecutions, it is not unlimited,” he said further.

“I am really making the call in light of this and I want it to be clear, I am not suggesting at all, any impure or improper motive in terms of how the matter unfolded because you have issues sometimes. Sometimes there are challenges beyond the control of the DPP,” Champagnie added.

Pointing out that abuse of process often turns on delays, Champagnie said “when you have inordinate delay the trial of an accused person still is up for consideration and it shouldn’t be. After you have an inordinate period of delay it is not fair to the accused whose witnesses may have died, migrated, memory may have faded, they may have been prejudiced in terms of their employment and so on. Abuse of process also relates to instances where, from day one, the prosecution is aware that what they have is not sufficient to go beyond a no-case submission and they still persist. It can only go well for the development of the jurisprudence in Jamaica and I am not saying that in this case there was any improper motive, let me be clear about that, but you need to have that,” he argued.

But DPP Paula Llewellyn QC and Deputy Director of Public Prosecutions Adley Duncan disagree with Champagnie, noting that there were no deficits as far as existing legislation was concerned.

“I was hoping that learned Queen’s Counsel might have offered some suggestions as to specific aspects that he would wish to see in the legislation because the abuse of process jurisprudence that exists already is wide enough and powerful enough to account for a lot of the problems he is saying may occur, because every case will be different, and a judge who is sitting on an individual case will be seized of the relevant factors that operate on that particular case and has the power to not even allow the trial to proceed,” Duncan pointed out.

The case involving the Cokes and others, he said, was no exception.

He said, for example, in the case with the Cokes, if the witnesses were found and the DPP decided to initiate a new prosecution, “the indictment on which we would be proceeding would be vulnerable to being quashed because of an application that could be made for abuse of process”.

“This is a power that is open to all judges, even parish judges, not to mention Supreme Court judges. So I am at a loss as to what Queen’s Counsel would hope to see in any new legislation because judges, especially experienced judges, know what their powers already are and the powers that already exist under the common law which are very wide,” Duncan stated.

He said, though, that he was in agreement with sentiments to the effect that trial date certainty must be prioritised.

“I do see how pausing a case can interfere with very high ideals of trial date certainty, but there are intersections I think have to be considered when it comes to the administration of justice and the role that each party plays… and each party in a way operates as a check and balance on the other and I entirely agree with the very correct legal position expressed by Mr Champagnie. The DPP’s power is wide, but it is not unlimited. There are very powerful valves and mechanisms that already exist to operate as a check and balance on the powers of even the DPP,” he argued.

Commenting further, Llewellyn said, “I am yet to hear the concept fully developed but I would not support any sort of legislative scheme being imposed on the sort of latitude the judge would have as a matter of law while giving respect to the public interest to make sure that the pendulum of justice swings evenly on both sides”.

“In Jamaica we live in a violent society, we live in a culture which says ‘informer fi dead’, or ‘I don’t want to be an informer’, so if you had legislation which acted as a strait jacket to the judicial officer you may be putting things in place unwittingly that undermine. It may work to the benefit of the accused… but what you may be doing unwittingly is paving the way for the intimidation of a witness to cause the witness not to be present for a trial and then lo and behold we have a situation where the Crown may have to offer no evidence,” she said.

“Mr Champagnie, as leading defence counsel, perhaps may have a concern but we cannot afford to be one-sided in our concern as prosecuting attorneys because our duty is not to a client as Mr Champagnie’s would be. We have to look at the fact that somebody was murdered in a very heinous way and that the allegations are that these particular individuals are part of a criminal organisation and had this murder committed; so what do we say to the family of the victims and the community in which the murder was committed, is it that it is only the accused whose rights are to be recognised? I think not,” the DPP stated, noting that she had great respect for Champagnie.

She further pointed out that defence counsel has three routes open to them in situations of this sort.

“If or when we seek to bring back a matter to be tried because we now have the witness, when the matter is to recommence counsel for the defence can, even before the plea is entered, make an objection that it is an abuse of the process of the court… and from that exchange the judge will make a ruling. The second option when the matter is brought back would be to take the decision on judicial review. The third is that if some time has passed since the conditional nolle that was entered and no prosecution has commenced, the offender can make an application to the DPP to have the matter completed and ended once and for all (subject to discretion),” she explained.

“Once we are satisfied that there is no likelihood of the prosecution being refreshed then we terminate the matter and there is a full acquittal. So it is for counsel when they are advising their client to indicate that these are the three options, and to use their experience and ingenuity to ensure that they give the appropriate advice depending on the circumstances of the case,” she said.