DEFENCE attorney John Clarke on Tuesday described the “technological evidence” against entertainer Vybz Kartel and his co-accused as “very important”, and said if the Appeal Court rejects the defence’s arguments that it would “not be in the interest of justice to order a retrial” of the men, it will have to consider the evidence against each appellant “individually”, since the case against each of them might “ultimately lead to different conclusions”.

In a seminal judgment in March the Privy Council quashed the murder convictions of Adidja “Vybz Kartel” Palmer and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John for the 2011 murder of Clive “Lizard” Williams, but placed the question of a retrial back in the lap of Jamaica’s Court of Appeal.

Palmer and his co-accused were accused of killing Williams on August 16, 2011 after he failed to return two unlicensed firearms which Palmer had allegedly given him for safe keeping. Williams has not been seen since and his body has never been found.

The prosecution’s case had been that the correspondence and communication media, taken as a whole with the evidence of the sole eyewitness, proved the fact of the killing, the reason for the killing, the method of disposal of the deceased’s body, and the identity of at least one of the killers, namely Palmer.

The defence had argued that the evidence was obtained in breach of the constitutional rights of the men and was therefore inadmissible.

But the British court offered no conclusions whatsoever in the appeal asking it to rule on whether the original trial judge should have excluded the telecommunications evidence relied on by the prosecution.

Instead, the Privy Council said it would defer any answer to the constitutional issue to “another occasion” where it can hear the mind of the Jamaican judiciary.

On Tuesday Clarke, addressing the Appeal Court panel comprising justices Marva McDonald-Bishop, Paulette Williams and David Fraser, said, “We will try to point the court directly to where in the material evidence there is the statement from the accused men and, importantly, what [the sole witness] had said in relation to each of the accused men.

“We make the point that each of the cases for the accused men needs to be considered individually in making the determination whether or not a retrial should be ordered in relation to each of them, because the case against them may ultimately lead to different conclusions. The case for each defendant would have to be considered individually if a retrial was ordered.”

Clarke, however, noted that this would only be applicable if the Appeal Court rejects the overarching argument of the defence, which is that by the mere passage of time and the attendant prejudice, in light of case law and the constitutional guarantees in this country, it would not be in the interest of justice to order a new trial.

Clarke also addressed the chronology of events in the case. He said that the date of the “chop up text” which was purportedly sent from Palmer’s phone to a third party, communicating that Lizard was dead and would never be found, was dated July 6, 2011. However, the send date of the message pre-dated the incident date by more than a month.

“On the indictment, the men were accused of committing the crime on August 16, 2011 and taken into custody September 30, 2011,” the attorney noted.

In inviting the court to consider what obtains when ordering a retrial, particularly in circumstances where a conviction has been quashed, Clarke pointed out that the appeal process has languished for over 10 years and asked, “How can the men have a fair trial after all this time?”

Said Clarke, “While different State organs might have justified reasons for taking time to examine the matter, let us not forget that at all material times the appellants were incarcerated while the wheels of justice slowly turned.”

According to the attorney, there is a “ prima facie breach of the reasonable time standards” guaranteed by the constitution, in addition to the breaches of the fair trial rights of the men.

Justice McDonald-Bishop, commenting on that issue, said, “The Crown will have to tell us why, given the two breaches of the fair trial rights, a retrial is justified.”

In the meantime Clarke, in referencing the affidavits filed for the men in which they say they are broke and unable to foot the cost of further legal battles, said, “There are some concerns about the legal aid system,” adding that the four appellants are already concerned about the reduction in the number of jurors from 12 to seven based on changes in the law since their original trial, much less being tried by a single judge.

“We are submitting that the effect of a retrial order can cause prejudice to the appellants,” the attorney said while further pointing out that in light of the admission by the Crown that some witnesses might not be available, a further breach of the rights of the appellants was being created.

According to Clarke, “In a country where the trial list of the Home Circuit Court is long” and a retrial likely to take more than the original 64 days — which would “prolong the ordeal” of the men — the rights of other accused whose matters might be stood down to allow for the retrial would also be breached.

As to the findings of the Privy Council regarding the majority verdict, Clarke said its pronouncements on whether directions by the trial judge could have cured the contamination of the jury, which led to its decision to quash the convictions, was an issue with which the defence had grappled and which the court needed to resolve.

“It’s important to the court for considering where the interest of justice lies,” given the board’s observation that no directions by the judge, no matter how focused and firm, could compensate for the real risk of contamination. The board, in considering whether directions could have cured the issue in the case, held that “in any event a direction, however focused and firm, could not rectify the damage to the integrity of the trial”, the attorney pointed out.

“The question we debated amongst ourselves was that, if when the trial ended on March 13, 2014 no direction, however focused and firm, could have cured the prejudice to the appellants by the bribery allegations, how then in 2024, or in 2026, or even 2028 — whenever a jury in a new trial receives this matter — how can a direction, however focused and firm, cure the prejudice that has been caused to the appellants? That is the question that has detained us and that is why it is an issue for this court, we submit, to also grapple with,”
he stated.

Clarke is expected to end his submissions today when the matter resumes at 10:00 am. The hearing, which began on Monday, is expected to culminate on Friday.