Magistrate Young disallows Bute’s statement

Failure by the prosecution to lay the proper grounds as to why constable Charlene Bute’s statement should be admitted into evidence resulted in Chief Magistrate Sonya Young disallowing the application on Monday.{{more}}

The issue surrounding Bute’s statement surfaced last week at the Serious Offences Court when the defence, led by Kay Bacchus-Browne, questioned how was it possible for Bute to obtain transcripts of a recording of Elwardo “EG” Lynch’s “New Times” programme to put in her statement three months after she placed them into the custody of her superiors.

That question was answered when Bute continued with her testimony on Monday this week. “I got it from my superior. The transcript I transcribed on August 23-24, 2007, I got from Assistant Superintendent Stamford Hamilton….He directed me and I included that in my statement,” Bute stated under cross-examination by Bacchus-Browne.

The case centres around Elwardo “EG” Lynch, who is charged with publishing a false statement which is likely to cause fear and alarm, on August 23, 2007. It is alleged that Lynch made statements of an alleged meeting between Assistant Commissioner of Police Lenroy Brewster, Government Senator Julian Francis and boat operator Anthony “Que Pasa” Gellizeau, which is alleged to have occurred between August 3 and 23, 2007.

On Monday, Director of Public Prosecutions Colin Williams applied for Bute to refresh her memory from the statement given on October 10, 2007, but that was objected to by Bacchus-Browne.

Williams said that it was not a test of memory but rather a test of whether the witness is being truthful. Williams said that a person who has recorded an extract from a tape, which has been transcribed, cannot be expected to memorise a three-hour program. “Therefore, the person includes within their statement the extract to which they are referring. Why is it they can’t present it to the court?” Williams asked.

In her response, Magistrate Young told the DPP that he could not present some parts of the statement to the court, the only way was for the DPP to refresh Bute’s memory.

“So you can read from the statement, but the statement itself does not go in,” Young advised.

“What allows me to put that statement as an exhibit?” Young asked.

The magistrate added that what Bute reads from the statement is not necessarily exactly what is on the tape (recordings) “She would be now saying that this is what I heard and wrote. So for me, the tape is still the thing,” Young pointed out.

When Bute took the stand last week, she noted that after recording the three-hour long program on August 23 and 24, 2007, she transcribed what was said by Lynch. She then handed over the audio tapes and hand-written transcripts to her superior, Station Sergeant Charles Allen, who kept them in his possession. A typed copy of the transcript was also handed over, but Bute said she was not aware who typed it. She also stated that she never signed the transcripts.

Bacchus Browne had objected to the statement primarily on the grounds that Bute’s 12-page statement repeated verbatim what was said by Lynch.

Station Sergeant Allen had told the court that after Bute handed him the tapes and transcripts he handed them over to Assistant Superintendent Stamford Hamilton.

In her evidence this week, Bute repeated that she got the transcript from ASP Hamilton on October 23, 2007, to include in her statement. In fact, her police statement was given on October 10, 2007.

After hearing both sides, Magistrate Young said “I am not allowing the statement, Mr DPP”.

Raising another objection, Bacchus-Browne accused the DPP of changing his application from seeking to have the witness statement admitted to just having Bute’s memory refreshed from the statement. “He is trying to get in through the backdoor what he can’t get in through the front,” Bacchus-Browne objected.

The prominent lawyer said that that purported transcript of Bute was not dated, signed or has no certificate of authenticity. Bacchus-Browne further argued that the evidence from Bute and other prosecution witnesses shows clearly that what is in the transcript cannot be a replica of what she recorded from the tapes. “There are many gaps in it…despite the inverted commas, it leaves one to believe what is exactly on the tape,” she said.

Under more intense cross-examining, Bute said that she wrote two pages of notes before transcribing eight to nine pages of transcript and then handing them over to her superior along with the audio tapes.

Bute also said that the typed transcript she used to put the information in her statement was signed by her in August 2007 after Hamilton gave it to her to read over. She, however, couldn’t say who typed it. She also said that she has heard of a transcript that has the full conversation between Lynch and callers. “I have heard of it but I have never seen it,” she said.

Two more prosecution witnesses, including Hamilton, are expected to take the stand when the matter resumes on July 8, 2010. (KW)