Sunday, December 17, 2017

Fear factor real and effective

 Dana Seetahal in the Express of February 15 has succinctly outlined relevant case law and statute in respect of deceased witnesses whose evidence was recorded before death, being subsequently read in court.

Importantly she relied on sound legal precedent set in English courts and she quoted from  Scott and another v R;  Barnes and others v R [1989] 2 All ER 305 (a Privy Council judgment) and R v Sellick [2005] EWCA Crim 651. In addition, she mentioned that certain changes were brought about by the Criminal Justice Act 2003 (in England), which were mirrored by new statute in T&T. 

Quite rightly she quoted Lord Griffiths in the Sellick case. She rightly paraphrased or interpreted the situation that,  “The judge would direct the jury in relation to the weight to be accorded to a statement that has not been given orally or tested in cross-examination.”

In essence, justice cannot be hijacked as easily as it might appear to those who would interfere with the proper business of the courts. 

I had to wonder, though, about her concluding remark that, “It should be evident, therefore, that once a witness has given a statement to the police in a criminal matter there is no benefit to an accused person to have that witness killed or even frightened.”

Whilst logically consistent, it seems obvious to me that a particular witness may not have given a statement in a case but was obviously at or near the scene of a crime—and therefore most likely to be a witness. Such cases do occur, not uncommonly, when witnesses have suffered serious mental or physical injury, rendering them temporarily incapable of providing reliable and comprehensive statements. Other scenarios exist where witnesses have taken flight in fear for their lives and have not yet come forward. No legal qualification is required to imagine these kinds of situations. 

Ms Seetahal appears to focus on the circumstances surrounding the Stacy Roopan homicide where it was widely reported that Roopan’s life was previously threatened by individuals who were intent on preventing her appearance in court. Ms Seetahal heaps much praise on Mr Roopan (the father), who is stoic as he is urging that witnesses should not be frightened off by what happened to his daughter. Whilst Mr Roopan’s position is laudable, not everybody will share his point of view.

Ms Seetahal fails to demonstrate an understanding or recognition, that the more psychopathic the criminal element is, the less likely they would be to pay much attention to her sort of legal analysis or knowledge. They will just kill witnesses anyway, or regardless. Why? Because they just don’t care one way or the other about life and the legal issues that Ms Seetahal eruditely explains. 

Unfortunately, there is mileage to be gained by killing key witnesses whether or not they have given recorded evidence. It is simply that the power of criminals—often part of a gang—is asserted and fear is induced in similar would-be witnesses in other matters. In other words a greater part of the population is held in the grip of fear. 

But there remains a fundamental problem. The accused who is bound to be presumed innocent, is robbed of the value of live cross-examination of the witness who has been killed. The prosecution could expect to find it more difficult to impress a jury that the criminal standard of proof has been met. Whilst recorded statements will be considered by the court, the weight given to such evidence by a jury may be less than the average for live tested evidence. 

I am personally aware of the sophistication of British special security agencies who do an incredible job of protecting witnesses in important high profile cases. I seriously have my doubts that similar protections can be afforded by special services in T&T. Hardened criminals are well aware that murdering anybody in T&T hardly ever results in detection and prosecution. Killing witnesses just adds to that probability, especially if witnesses have not as yet made statements. In other words, people who have been witnesses to serious crime will more than likely live in fear. 

Ms Seetahal’s sound legal opinions offer little or no real reassurance for witnesses of any type and their families. I also doubt that average Trinbagonians will give much weight to reassurances of Gary Griffith on how improved is the crime situation. 

The reality remains stark in the minds of average people that these are dangerous times. 

Dr Russell D Lutchman