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Convince me!

Judge throws down gauntlet to prosecutors in case involving seven charged with death of 'don'

Senior staff reporter

Thursday, April 22, 2021

SUPREME Court Judge Justice Leighton Pusey will today hear arguments from prosecutors why he should entertain a nolle prosequi being entered by the director of public prosecutions to discontinue criminal proceedings against the seven individuals charged in relation to the 2018 killing of an alleged Corporate Area don, effectively springing them from jail for now.

The seven, including three relatives of reputed former Tivoli Gardens strongman Christopher “Dudus” Coke, are facing charges ranging from murder, conspiracy to murder, illegal possession of firearm and ammunition in connection to the death of 31-year-old Patrick Davis, otherwise called Pee Boy, whose body was found in Rockfort, Kingston, on Monday, March 12, 2018. If successful, Iesha Jones, Andrew Coke, Lanchester Coke, Michael Coke, David Biggs, Delmarco Cephas and Wayne Page will be released from custody but will still have the charges looming over their heads.

Yesterday Justice Pusey, who said he had not seen the document, insisted that he wanted “to hear the legal arguments” before the document was presented to the court.

“I have not seen the nolle and I am saying that before it is presented before the court, I would like to see it. Was it filed in the registry?”Justice Pusey enquired. Upon being told that the document was in the possession of the registrar's clerk whose duty it was to hand the item to him and who was present in the courtroom, the judge, who declined to acknowledge the document, persisted, “Was it filed in the registry?

“I have not seen it. I am willing to hear arguments before seeing it...Let me make this clear about my position...I, as the court, have to be responsible for the precedent that we set. I have a responsibility to ensure that when we say a matter is set for trial, a matter is set for trial,” Justice Pusey stated.

“We are having a situation where we give the impression that if... the matter is not ready there can be a conditional nolle and the matter be brought back at another time. Then what we are saying is that the Crown has this opportunity to do that, whereas for trial date certainty it means that if we set a date and the defence says I have witnesses and my witnesses are ready, and then it turns out that those witnesses are not ready or available at another timembut the court says trial date certainty, so is it fair in relation to that?

“And though I have the power in relation to that, I need to ensure that constitutional powers used before the court are used in a way that is fair to all the persons,” he stated further, going on to note that the move would put the accused in a position where they may be free persons but would have a charge still hanging over their heads, which would mean they could be brought back before the courts in a matter of months or even years “because [they] have a conditional nolle hanging over their heads”. Consequently, he said the prosecution should this morning present its arguments before the court, followed by a response from at least three members of the defence team.

Section 4 of the Criminal Justice (Administration) Act prescribes that at any stage before the court renders judgment, the DPP may discontinue criminal proceedings in any court by entering a nolle prosequi. She may do so by stating in open court where the proceedings are pending or by informing the clerk of the courts in writing that the Crown does not intend to continue such proceedings. Consequently, the proceedings will end and on receipt of such notice the accused shall at once be discharged in respect of the charge for which the nolle prosequi is entered.

However, the entering of a nolle prosequi by the DPP is not an acquittal on the charges being tried and the DPP has the power to bring back or re-indict the matter. A nolle prosequi can be entered even though the accused person has pleaded guilty to a lesser charge on the indictment, for example pleading guilty to manslaughter instead of murder, as long as the court has not yet passed sentence.