More professionals should be sued for negligence – lawyer

A local attorney strongly believes that were it not for the reluctance of professionals to testify against their colleagues, more professionals in St Vincent and the Grenadines would be sued for negligence.

“In a lot of these cases, you have to have corroborating evidence or someone else from the profession testifying against that person as to what they did wrong; you need a doctor to pronounce on what a doctor did wrong… {{more}}[and in St Vincent that’s] highly unlikely,” said Vincentian lawyer Michael Wyllie, who also practises law in the United States.

According to Wyllie, persons are paid to testify in the United States, but this does not happen here.

“In my opinion, more of this needs to happen here. In the medical field, doctors get away with murder here; nobody sues doctors; don’t tell me the doctors here are perfect. In the United States, doctors get sued every day, where I’m sure they’re far more capable and far more careful.”

Wyllie said that in St Vincent and the Grenadines, when a doctor is negligent, it is the popular belief that what happened was “God’s will.”

The attorney shared this opinion while discussing the recent dismissal by the Magistrate’s Court, of a case involving Wyllie’s client Maxford Ashton, who had been charged with raping a young woman at Brighton.

Wyllie disclosed that the woman had been making her way home from a popular nightclub in the area when someone jumped our from behind some bush, grabbed her and said “I know you, but you don’t know me; all I want is some *****,” following which, she was allegedly thrown to the ground and raped.

“On what basis my client was arrested, I still don’t know,” remarked Wyllie. “She could provide no physical identification of the person.”

In an earlier interview, Ashton told SEARCHLIGHT that he was in the Brighton area at the time of the alleged incident and was arrested for possession of a marijuana cigarette. That case was given a full discharge from the magistrate. However, while in custody, Ashton said he was named as a suspect in the rape case for “no stated reason.”

On the day when the case for possession of marijuana was dismissed, Ashton was further detained after being told by police that they would like to have a word with him about the rape matter.

He was then put in an identification parade with eight other prisoners, who were all told to repeat the phrase “I know you, but you don’t know me; all I want is some *****”.

Wyllie further disclosed that he was told by Ashton, who was the eighth person in the parade, that the young woman hesitated when she got to number four and then identified him (Ashton) as the voice of her assailant.

“I have information that she had said there was a foreign accent; the alleged rapist had a foreign accent. When I cross-examined her in court, she said no she never told anybody so.

However, according to Wyllie, during cross-examination, the investigating police officer said yes, the victim had told her that the person had a foreign accent.

“Basically you have a big contradiction there,” the attorney declared.

According to Wyllie, during several appearances before the start of the preliminary inquiry (PI) the police did not appear to be prepared, which he found unusual.

“So, I said to the prosecutor: ‘Listen….my understanding is all the evidence you have in this case is voice identification. If that is the case, where are you going with this?’ He said to me he doesn’t have the file; if in fact it’s only voice identification, he probably wouldn’t have a PI; unfortunately a date was set for the PI.”

Wyllie said he was amazed when the case began to learn there was no additional evidence, such as DNA or sperm and the case rested solely on the voice identification.

“The only evidence they took this case to court for is the ID parade, in which there was a clear conflict.”

“The girl was saying that ‘no I never told anybody he had a foreign accent, it was a Vincentian accent,’ the police is saying no she said was a foreign accent.”

“At the beginning of the PI, she came into court, the magistrate asked her, ‘Do you know this man? No? Have you ever seen him before?’, to which she replied ‘No’,” said Wyllie.

“I’m sitting there; I’m thinking, well you know they must have other evidence than voice ID… If you’re going to rely on voice ID the person must have known the suspect for over a long period of time,” said Wyllie.

He drew reference to an acquaintance of his whose wife could not differentiate between her husband’s voice and that of her son’s over the phone.

“When you’re relying on voice identification, there must be other corroborating evidence… the person must have known the person, known the voice for a period of time; have some kind of DNA evidence, some witness, some other person saw the person; there must be corroboration,” said Wyllie, adding that voice identification is a very unreliable form of evidence.

“Other than a lengthy familiarity with the voice to make the identification credible, the voice must have some peculiarity or idiosyncrasy, which would help to distinguish and identify the person. For example, if the person has a stutter, or is known to use a particular or distinctive phrase when she or she speaks. Mr Ashton has neither, nor does the alleged perpetrator.”

The attorney stated that during his cross-examination of the investigating police officer Woman Police Constable (WPC) 765 Johnson he asked: “In matters of this kind didn’t you preserve the evidence, the lady’s clothing, underclothes?”

The WPC informed him that she took the defendant to the doctor; however, she was unaware of what became of the samples or if they were tested.

Following this, Wyllie said he made a no case submission, to which the magistrate agreed on November 19, 2015, stating that there is a conflict in the evidence.

“The magistrate had no other choice than do discontinue the case… it was a total waste of time,” he asserted.

Wyllie disclosed that he has human rights experience and that this was a ‘classic human rights case’. He added that he was appalled that a man would be deprived of his liberty like this, as the accused had to report to the Calliaqua police station over the course of a year.

“More than that, having this label over his head as being a rapist,” he added.

Wyllie said that at the end of the case he made reference to the prosecutor’s code.

“If it is observed, which it wasn’t in this case, the document made reference to these kinds of things that when you prosecute someone you have got to be sure that there’s evidence to convict, because even when the person is found not guilty, there’s a stigma attached, especially in rape matters… apparently people have been calling him (Ashton) a rapist.”

Wyllie stated that he believes that the DPP did not review this file and if he did so, he cannot believe he allowed the case to go as far as it did.

“My client did not get the benefit of their competence in this case… its ridiculous.”

Wyllie said he has worked in human rights in Haiti for three years, after which he went to Washington where he was in charge of that mission.

“Human rights is part of me and when I see these kinds of things, it really sends my blood boiling.”

He said that he asked the police: “You mean you just walk around St Vincent and arrest people willy nilly? Even the magistrate at the end of the case said she would like to know on what basis he was arrested; no one could figure out yet on what basis.”

According to Wyllie, Ashton wants to sue, and in the United States he would have a clear case. However, Wyllie said he advised his client that in St Vincent and the Grenadines it is a ‘waste of money’ because St Vincent does not have a history where doctors, lawyers and other professionals are sued.

He, however, informed Ashton that despite it being a waste of money to go forward with the matter, he does have a case because the police had no reason to arrest him.

“I think it’s one of those cases which come along very rarely and because of the novelty of this kind of case, I thought it was a case that could have been expanded and developed and provide a better sense of what transpired in the case.”

In the case of R v Roberts, the Court of Appeal ruled that according to the expert research that has been done, voice identification is more difficult than visual identification, especially in the case of a stranger, and therefore should attract an even more stringent warning than that given in the case of visual identification. It is also clear that where a tape recording, including a converted tape recording, of a voice alleged to be that of the accused is admitted in evidence, the opinion evidence of an expert in the phonetics is admissible on the question of whether voice matches that of the accused. (AS)