The prosecution will today be expected to furnish the panel of Appeal Court judges mulling the retrial of entertainer Vybz Kartel and three co-accused with answers as to how it will avoid prejudicing the appellants who are already 13 years down the wicket serving their sentences with at least two very close to their parole eligibility.

The issue was raised by Appeal Court Judge Justice David Fraser on Thursday during submissions by Acting Director of Public Prosecutions (DPP) Claudette Thompson on arguments by the defence that the time lapse since the trial and the subsequent appeals is “a sufficient factor to militate against the making of any order for a new trial”.

“Looking at the length of time the various men were sentenced to in respect of the parole period, and looking at the length of time they have already been in custody, how does that factor in the question of delay if there is retrial, say at the earliest time. They probably would have been in custody for 15 years by the time the retrial starts,” Justice Fraser pointed out.

“The minimum sentence, if convicted, would be 15 years, so someone who has 25 years, for example, and has gone 15, how does that factor into what the court has to decide and balance the competing interests?” he asked.

The concerns of the panel about the certainty of a trial date had on Monday led to them instructing the Appeal Court registrar to request from the Supreme Court an audit of matters awaiting retrial dating back six years.

The panel had admitted that the Appeal Court has satellited several cases to the Supreme Court for retrial and is clueless as to their progress.

In April 2014 Kartel was sentenced to life in prison with the eligibility of parole after serving 35 years of his sentence. His co-accused — Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John — were also handed life sentences. Campbell and Jones were eligible for parole after serving 25 years, while St John would be eligible for parole after serving 15 years.

In April 2020, following an appeal, the men’s parole times were reduced by two-and-a-half years each. In September that same year the men were granted conditional leave to challenge their murder convictions before Jamaica’s final appeal court, the Judicial Committee of the United Kingdom Privy Council. In March the apex court quashed the murder convictions of the four and remitted the question of whether there should be a retrial to the local Appeal Court.

On Thursday, Acting DPP Thompson, pressed by the panel to give a date for a new trial, indicated that the Hilary Term of 2025 would be earliest date possible.

Appeal Court Judge Justice Marva McDonald-Bishop, who heads the panel which also includes Justice Paulette Williams, emphasising the point raised by Justice Fraser, said: “To add to that, wouldn’t you be putting at least two of them in prejudice because the court can’t give them less than 15 years (the current mandatory minimum for murder). You have to help us out with that.”

Continuing she noted: “They got life imprisonment then. Even if you set a fixed term, the parole is 10 years, so if you get even 10 years they would spend 15 already, so those who got 22 years would get three years extra, which is prejudicing them, which ought not to happen in a retrial.”

According to McDonald-Bishop, “Palmer would be the only one left with some [prison] time, so you have to help us out with that. If you are going to prejudice them with the punishment it is something we have to give weight to. They practically would have spent more than half the time in parole already. So, you have to think about it, if it is even to concede on that point,” she told the Crown.

The acting DPP, at the start of the hearing, had presented the judges with an outline of what took place since 2011 when the men were taken into custody until the decision by the Privy Council this year.

“We are saying there was the breach of their right to be heard within a reasonable time… We are saying the delay can be reasonably justified based on all of the activities that took place during the 10-year period. And we are saying that, having disaggregated what was happening during that period, the presumption of unreasonableness, we have rebutted that presumption by demonstrating to this court what it is that was taking place over that period of time,” Thompson stated.

She also responded to concerns from the defence about the death of the handwriting expert who had appeared in the original trial and the admissibility of the technological evidence being relied on by the Crown.

“We are aware that handwriting expert Carl Major is dead. What has not been said, where Carl Major’s evidence is concerned, is that it is a sworn statement that has been tested under cross-examination. So we accept that the demeanour of the witness will not be observed, but we accept that it was experienced counsel who marshalled the taking of his evidence. As far as we are aware, there is no bar to the document being examined. The document that was examined by the now deceased is still there; it was the document that was examined and tendered into evidence,” she told the court.

McDonald-Bishop asked: “Are you saying to send back for the document that was already tested to another expert you are exposing the defence to an increased risk that expert might come with another conclusion?”

Thompson replied: “They would be in no worse position than with the first trial. There was a risk at the time when Carl Major examined the document; the risk is the same. If they were to get another [expert] and they do not find that it assists them, then they don’t use it.”

McDonald-Bishop responded: “That’s a point that is novel, because the case law is that they should not be placed in a worse position than they were in in the previous trial.”

In response, Thompson said: “They are in no worse position because they have the transcript with the very same information that the last set of jurors had. Barring demeanour, barring seeing the live witness, the very same information that the first set of jurors had is the same information the new set of jurors would be seeing. I accept that it is a different position, but I disagree with you that it is a worse position.”

Meanwhile, the acting DPP, in arguing the strength of the Crown’s evidence on the basis of the testimony of the sole eyewitness and the girlfriend of the deceased, said: “We have direct evidence that implicates all four of the men, and then there are the two types of technical evidence, meaning the digital extractions of messages, pictures, videos, voice notes and then there is the communication data, and by that I mean telephone calls and cell site data.

“We are saying, when you put all of that together, what the Crown has is a cogent case against each individual accused person, and that even if the Crown were to fail to have the technical evidence, whether one or the other or both, we would still be left with objectively strong evidence from the other witnesses.”

The Crown’s Janek Forbes, in response to concerns by the panel that the voice notes and videos purported to be of the incident were in the public domain right after the men were convicted and before their appeal process began, said that despite the widespread publicity around the case they could still get a fair retrial.

“There are many ways in which the information could have gone out there…the material was disclosed, we are not laying blame on any side or the other, but we are saying it is possible,” Forbes said.

He said there were procedural safeguards that could be applied by the court in ensuring the integrity of a retrial, such as polling the jurors and by giving not only the usual directions, but by also giving “enhanced directions” from the bench at any point during the trial.

The matter resumes this morning at 9:30.

McDonald-Bishop said, while the hearing had been expected to last five days, ending today, the matter would be held in abeyance until the results of the audit from the Supreme Court is received.