Now that the dust has settled, the marathon case listed in our law reports as Shawn Campbell and others vs The King, but more popularly described as the Vybz Kartel murder case, it’s time to reflect on some salient and teaching moments in this historic case.

Following on the missing person report in August 2010, concerning Clive “Lizard” Williams, the police arrested and charged five men, including Shawn Campbell and Adidja Palmer (Vybz Kartel), Kahira Jones, Shane Williams, and Andre St John. After nearly 4 years in custody, they were — save and except Shane Williams — found guilty of murder and given life sentences. The four were not eligible for parole until the lapse of between 25 to 35 years.

The trial was far from uneventful. It started with 12 jurors and ended with 11. Among that 11 was one briber. The Jury Act of 2014 allowed for murders to be tried by 12 members. Over the past 10 years following that trial , murders are now triable with seven jurors. In 2014, when the men were being tried, the judge could not sit with less than 11. This is the dilemma the trial judge faced with having excused one juror in the middle of the trial. The judge could not reduce the number any further without being compelled to declare a mistrial and order a new trial. In retrospect, the judge ought to have resisted excusing the juror which brought their numbers to 11. The excused juror had complained that her son, who was being held at the same institution as the accused men, expressed deep fears, in the event that a verdict adverse to the accused men was given by her. What the judge ought to have done in hindsight was to cause either her son, or the accused men, to be taken to another institution and continue with a jury of 12.

FAIR TRIAL DENIED

It was the allegation of bribery complained of by the foreman of the jury, against juror ‘X’, which eventually led to the successful complaint that the men’s right to an impartial jury was trampled on, and they were denied the right to be tried by an independent and impartial tribunal in breach of section 16 of the constitution. The trial judge took the rap for this blunder; however, I am of the view that both the director of public prosecutions (DPP) and the local Court of Appeal also blundered.

Why do I say this of the DPP? Her role as the chief prosecutor may have justified her entry into the chamber hearings regarding the foreman’s complaint about juror X, who is alleged to have made the offer to pay a million dollars to the foreman, in two equal tranches. However, the DPP encouraged the judge to proceed with the case rather than abort the trial. Said the DPP: “[A]s far as the prosecution is concerned, we are prepared for the matter to proceed.” The DPP then told the trial judge to avoid dealing with the allegation of bribing the foreman, and that he should “just remind them of their oath and their charge” (page 11 of volume 10).

The right to a fair trial is one of our fundamental rights. The DPP is an organ of the State. The framers of our constitution pointedly said at section 13 (2( (b) that “…no organ of the State shall take any action which abrogates, abridges or infringes those rights”.

In the 2001 Privy Council Appeal from the Cayman Islands of Barry Randall, where a prosecutor’s misconduct was held to be so egregious that the conviction was overturned, the court chastened the prosecutors that, “The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

In the Shawn Campbell/Vybz Kartel case, the trial judge was overly concerned with the inconvenience of redoing the longest criminal case in Jamaica’s history. He allowed expediency to override the requirement of a fair trial. Again, the case of Randall was guidance which he failed to follow. In that case, the Privy Council said it was “the longest criminal trial ever held in the Cayman Islands”. Notwithstanding that fact, the Privy Council went on to say, there was “one overriding requirement: to ensure that the defendant accused of crime is fairly tried”.

The judge and the DPP aside, our own local Court of Appeal must come in for criticism. I want to make it clear that the statistics show that the Court of Appeal in England has been reversed by their final appellate court more often than our local appellate court has been reversed by the Privy Council. I make this point to silence those who seek to use the Kartel case to support the retention of this colonial court. It’s a position I cannot support as we have able judges in the Caribbean to man a final regional appellate court.

But, as I said earlier, it still baffles me how the jury misconduct submission made by me in our Court of Appeal was not upheld. The denial of the accused’s right to be tried by an independent and impartial jury was patent and open for first-year law students to comprehend. I can only say that, going forward, the local Court of Appeal must demonstrate an acute awareness of the pronouncement of the Privy Council that “the right of a criminal defendant to a fair trial is absolute”.

FAILINGS OF THE PRIVY COUNCIL

I have criticisms of the Privy Council also. The DPP was allowed by the trial judge to pose questions directly to the foreman in chambers. The Privy Council had no issue with this interrogation by the DPP. It is my opinion that no lawyer, be they defence or prosecutor, should in any trial in chambers or open court be permitted to question a juror directly.

A question to a juror can result in an endearment to that juror, resulting in a subtle but real interference with the jurors who are the judges of fact. The age-old acceptable approach is to ask that the judge pose the question on the lawyer’s behalf with its terms approved by the judge, rather than allowing direct and uncontrolled questions to be posed and answered. In advocacy, a question may be asked by counsel who has no interest in the answer but rather in the message the words used in the question transmits to the person questioned, and the judge/jury hearing the question.

Also, there was another issue of great public and constitutional importance. It concerned the fact that the contents of Kartel’s phone was admitted into evidence by the trial judge. The phone was examined and used against him in breach of his right to privacy of communication, and without the permission of a judge in breach of section 13 (3) (j) (iii)of the constitution, and in breach of the access to information law. The Privy Council refused to determine the issue of illegally obtained evidence in Jamaica’s jurisprudence, depriving us of guidance on a huge fair trial issue.

POLICE ABHORRENT CONDUCT

The case exposed multiple examples of unacceptable conduct on the part of the police. One of which had to do with the safe keeping of exhibits. The original of the CDs containing information allegedly taken from Vybz Kartel’s phone was lost by the police, and hence the accused was denied the opportunity to compare original with copy. Further, the phone taken from Vybz Kartel was placed in a filing cabinet which was left unlocked, and shockingly the said phone was used by the police to make private calls and send text messages.

The alleged crime scene at the address in Havendale, Kingston 8, St Andrew, whilst under the watch and control of the police, was severely interfered with and compromised. How can the police take control of a crime scene, yellow tape it, and others mysteriously gain entry to it and contaminate the alleged scene of crime?

COMMENDATION TO THE LAWYERS

I wish to commend all the attorneys who appeared in the four courts, whose hard work led to the successful outcome of this case. There were four teams concerned with this case. Firstly, the trial team which laboured in this matter for 17 weeks. The insistence of the defence trial team that a court reporter attended to make a record of that which transpired in the judge’s chambers during the jury misconduct enquiry is to be highly commended. It gave material to the Privy Council which led to the acquittal. In fact, that record of what transpired in the judge’s chambers, which ultimately led to the acquittal, was not made a part of the record prepared for the local appeal court, which ultimately made its way to the Privy Council.

Special mention must be made of Pierre Rogers whose words of encouragement to the judge to stop the trial were adopted by the Privy Council in its written judgment. It was at my insistence, by way of an application to a single judge of our local Court of Appeal that a new volume 10 containing the judge’s handling of the complaint regarding Juror X, who offered a bribe, was later added as part of the case. It is to be noted that Juror X was later tried for this misconduct, found guilty, and given a sentence of imprisonment.

The transcript and record of appeal, consisting of 6,196 pages, is testimony to the length, complexity, and hard work done by the four teams. The trial team was followed by the Court of Appeal team, the Privy Council team, and lastly the retrial team.

I close with the words of F Lee Bailey, the renowned lawyer who was part of the O J Simpson defence team, that “the defence never rests”, words which were clearly a guiding light to the lawyers in the Shawn Campbell/Vybz Kartel case, who were driven by the truism that lawyers are indeed guardians of the constitution.