First application under Special Measures Act fails

The first application under the Special Measures Act to have overseas witnesses testify in court via live video link has failed.

On Monday, at the close of the Criminal Assizes, High Court judge (Ag), Rajiv Persad said the application by the crown for the Special Measures Act to be used in a murder trial did not meet the threshold to warrant two witnesses not appearing in court.

The Crown, which was led by Assistant Director of Public Prosecutions Colin John, had filed an application to the court so that the witnesses in the murder trial {{more}}of Webster Woodley and Sheldon Bain could testify via live video link from an undisclosed location overseas.

The Special Measures Act, which was passed in Parliament on December 2, 2013, provides for an application to be made to the court for a witness anonymity order and provides for special measures to be given in appropriate cases. These special measures include the giving of evidence by live link, video recorded evidence, the taking of evidence from outside of St Vincent and the Grenadines and prohibiting the defendant in certain cases from personally cross-examining a particular witness.

Woodley and Bain are set for a re-trial in the November 29, 2004 murder of Peter ‘Kazaman’ Joseph.

At the first trial, the two overseas prosecution witnesses were brought back to St Vincent to testify in the matter.

At a sitting of the Eastern Caribbean Appeal Court on Wednesday, November 23, 2011, Appeal Court judges Justice Janice Pereira, Davidson Baptiste and Ian Mitchell upheld submissions by counsel for the men Kay Bacchus-Browne that the evidence led in the case was prejudicial.

In his findings on Monday, Justice Persad said the Crown had submitted that the witnesses in the matter are out of state and have expressed fear for their lives.

“Many persons who come to the courts are afraid.

“However, the truth is, the criminal justice system has to work. What if the court is to say that every time someone is fearful that the court automatically allows video tape evidence. I don’t think the court can start from that approach. It has to be on the basis of which particular circumstance and the presumption can’t be that if you don’t want to come you have to do special measures,” Persad said.

“The presumption of how a criminal trial works depends a great deal on the jury being able to see the particular witness, assess their demeanour, look at cross-examination and while it is true, you don’t always have to be live and present in court; that’s not the starting point. There should be a presumption in favour of that, unless the circumstances warrant the need for the person to give evidence from a remote location.”

According to Persad, there was no direct evidence from either of the witnesses to say directly the circumstances or basis for their fear and he noted that the court had to make a finding whether there is sufficient material to warrant a court making a finding that the witnesses are eligible to assist.

An affidavit from a third party at the DPP’s office had been filed, stating that both witnesses are fearful of returning here to testify.

“There is absolutely nothing more than a bold statement that the persons are afraid. It seems to me that it cannot be sufficient for someone just to say they are afraid and the court will then immediately go to special measures… I have not seen any material as to the age of the witnesses. I don’t know if the witnesses are young children. Other than the fact that that they are not in St Vincent, nothing has been said,” Persad stated.

The judge said that although the witnesses are out of the jurisdiction, there is nothing to suggest that they are not available to come.

“The court is still not satisfied, based on the material that there is need for a special measures in this case at this particular point in time.”

In her submissions, objecting to the Crown’s application, Bacchus-Browne stated that the Special Measures Act was not meant to replace the need for witnesses to appear personally in court.

Bacchus-Browne had also submitted that there must be cogent reasons given and proved, in order for the court to make the special measures order.

In an interview on Wednesday, Bacchus-Browne said she had referred the court to the defendants’ statutory right to be in the presence of the prosecution witnesses when evidence is taken.

“Cross-examination would be necessary as to previous inconsistent statements in writing. How am I going to put a statement that I have in my hand before a person who is in another country while we are cross-examining? They didn’t think about that,” Bacchus-Browne said.

Further in her submissions, Bacchus-Browne had argued that there had been no material change in the circumstances, which is required by section 16 3 (A) of the Act.

“Nothing has changed since they (witnesses) came here and gave successfully. There was nothing from preventing them from not coming again. Their reason for not coming was not sufficiently cogent,” she added.

Jomo Thomas who also represents the accused, adopted Bacchus-Browne’s submissions.(KW)