Nicole John, the wife of Cornelius John, gave surprise evidence during her testimony on Friday, that was undisclosed by the prosecution before that point.
This triggered accusations of ‘trial by ambush’ from the defence representing Unity Labour Party(ULP) Senator Ashelle Morgan and Assistant Director of Public Prosecutions(DPP) Karim Nelson.
“The evidence that is being led now, none of this was disclosed to us ever – all of this is new evidence,” stated lawyer Ronald Marks, who represents defendant Nelson. The assistant DPP is answering to charges of unlawful and malicious wounding and unlawful discharge of a firearm at Diamond resident Cornelius John on April 13.
“None of this conversation,” Marks added in reference to a phone call that Nicole John alleged occurred between her and defendant Morgan, “…And we’ve had additional disclosure” up until that very morning with regard to another witness, the lawyer noted.
Disclosure refers to the prosecution revealing all relevant evidence to the defence before their trial.
Supporting him in this point was fellow counsel Duane Daniel who represents Morgan. The senator is being tried alongside Nelson but is on a charge of assault with intent to wound.
Marks submitted that, “what we’re seeing happening here right now is classic trial by ambush.”
The prosecution leading the case for the Crown is St Lucia’s Deputy Director of Public Prosecutions(DPP) S. Stephen Brette.
He responded to Marks by noting that if they are claiming trial by ambush, the prosecution were the recipients of trial by ambush the day before, Thursday November 11, when the defence attempted to introduce an affidavit of Cornelius John’s concerning his former wife.
“This cannot be a tit for tat, it cannot be a tit for tat,” Daniel stated.
In a carrying voice, the lawyer said that in the state of St Vincent and the Grenadines(SVG) a defendant may reserve their defence.
“Where the defendant has a right to disclose something to the prosecution is in the specific instance of alibi. You have to give notice of alibi to the prosecution. The only other time that you have to give any information to the prosecution is when you are challenging a confession,” he said, “That is it!… in this jurisdiction.”
Therefore, he posited that for the prosecution to say his co-counsel’s defence was ambush, “is categorically incorrect.”
Daniel said that if it were the prosecution’s position that they had been ambushed and were going to lead material evidence that had not been disclosed, particularly in light of the fact that they had disclosed other evidence for a witness that had yet to be called to the stand that same morning, “then that almost, and I will choose my words carefully, speaks of prosecutorial misconduct.”
The prosecution told presiding Magistrate Bertie Pompey, that the defendant Morgan provided the police with a call log.
However, the defence noted that this was not the content.
Morgan’s lawyer stated that, “She has to defend what the prosecution is bringing. It is one thing to say that there were conversations, but if they wish to bring information that may very well be to our prejudice they have to disclose it.”
The Magistrate speaking to the prosecution said, “Let me bring your attention to one issue that you’re really missing here. These are the defendants in this matter…” and there are consequences for them being found guilty of a crime, he said.
Brette said he was quite aware.
Marks said they were making a formal application that “…all of this testimony be struck from the record, that it is unfair in the circumstances.
He claimed, “…I have never seen this approach to prosecution in all my life as a lawyer, 22 years. It is persecution that is going on here, and it is definitely trial by ambush. If this material evidence was not revealed to the defendant, how can we prepare adequately?”
Daniel interjected:“and take instructions.”
Marks reiterated that the Court of Appeal has spoken on the matter several times, and that the prosecution, failing in its duty to disclose, the undisclosed parts of the testimony should be struck from the record.
The prosecution’s stance is that the evidence could not be considered prejudicial to their defence because “The defendant provided the police with a phone record…” and also “the defendant knew of all the conversations that she had with the witness” which were initiated by her.
Daniel said that the proper process would have been for a further statement to have been taken from their witness concerning the evidence they wish to lead and for it to have been disclosed before the trial.
“That is what happens in the course of an investigation, you get the information, you investigate, you take further statements, you disclose,” the lawyer said.
The Magistrate asked Marks for authorities for his application to strike out evidence.
The prosecution commented that the only remedy he knows is for the matter to be stood down, and disclosure made. “… if they think- because our argument is that this conversation came from the defendant. It’s not somebody else said and- it came from the defendant(allegedly),” he said.
Marks commented that this was “a ludicrous argument.”
Kay Bacchus-Baptiste who has a watching brief in the case, asked to rise ‘Amicus Curiae’ or “a friend of the court”. She stated that the defence has a point about the disclosure, but that disclosure is ongoing, and they can remedy it in a statement.
The magistrate said that he was agreeing with the defence that disclosure should have been made, but he also said that for the evidence to be struck out he is asking that the authorities be provided.
Pompey proposed an adjournment.
Marks added, “I don’t think that that is any surprise and that has certain consequences that we will explore.”
The magistrate said that they had gone past this, and he reiterated that disclosure should have been made.
The prosecution asked for an adjournment until two in the afternoon which would allow for around three hours.
The Magistrate asked the defence if this was sufficient.
Daniel said they don’t know as the witness is still giving evidence and “we really don’t know what other pearls may fall from her lips tentatively.”
The defence counsel also noted that they would have to take instructions from their client after being served.
In the end, because of the traffic, and no photocopiers in the immediate vicinity, the prosecution wasn’t able to provide further disclosure until after 2:p.m.
When the court resumed, Marks cited the court’s “inherent jurisdiction to exclude unfair evidence”.
The matter was adjourned to yesterday, November 15, for the statements to be perused.
When the case was called yesterday another string of legal arguments began. The prosecution sought to continue with their witness Nicole John, but the defence again asked for the prosecution to satisfy that it would be fair to take that statement at the “11th hour”.
The prosecution maintained that the statement wouldn’t be prejudicial because the defendant was the alleged “author” of the content. He said that justice was for the prosecution and public and not only the defence.
The prosecution made mention that the evidence came to light during testimony, but the defence then questioned how the prosecution would assert it was fresh evidence as his response was “you did it yesterday” when the matter came up on Friday.
Ultimately, the Magistrate said that he hadn’t been provided with any authority but he did his own research and found a Grenadian magisterial case which outlined that once an accused person pleads not guilty, they are entitled to disclosure and failure to do so may result in the Court of Appeal reversing the sentence.
However, without any further authority he allowed the evidence to proceed, and said that if he is wrong then there is a procedure that could be followed.
The trial is continuing.