Attorneys for the State entities embroiled in the ongoing court battle to determine whether entertainer Vybz Kartel and two of his three co-accused are being illegally detained on Wednesday argued vociferously that the quashing of the convictions by the Privy Council in March did not equate to an acquittal and only reverted the men to their pretrial status with murder charges that are still “live”.
The Privy Council, in quashing the convictions of the men for the 2011 murder of Clive “Lizard” Williams, ordered that the case be remitted to Jamaica’s Court of Appeal for it to decide whether a retrial is necessary for Vybz Kartel — whose given name is Adidja Palmer — and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John.
Lawyers representing Vybz Kartel, Campbell, and St John on May 13 filed a writ of habeas corpus application in the Supreme Court in downtown Kingston seeking their release, arguing that there was no order by the Apex Court for the continued detention of their clients and as such they should be released.
The writ essentially seeks to have a judge make an order for a prisoner to be brought before the court for it to determine if he or she should be released or granted bail. Jones, who is reportedly facing another charge, was not included in the application.
Attorney Lisa White, appearing on behalf of the Attorney General’s Chambers before Supreme Court judge Justice Andrea Thomas, said: “It is our submission that the Privy Council judgment does not mean that the applicants are to be released. What is clear from the judgment is that the convictions have been quashed but they did not make an order as to whether the accused man and his co-accused are to be released. What is clear to me is that, that matter has been reserved for the Court of Appeal.”
Arguing that the habeas corpus application is “premature”, White said, “It is lawful for them to remain until the matter has been decided by the Appeal Court. The charges still remain. They are still charged with murder, notwithstanding that the convictions have been quashed, the prosecution is live.”
Continuing, White emphasised, “The quashing of their convictions means that the existing charges might be presented to a judge and jury at a new trial. It is clear that, given that the charge of murder still obtains, the applicants will not be rearrested or recharged. The Privy Council did not acquit the applicants, what they indicated was that the convictions were unsafe.”
As it concerns the status of the applicants, the attorney told the court, “What is clear is that the information from the affidavits in 2011 are still live and have not been removed from the court’s records, and the applicants would have been taken into custody at that time on reasonable suspicion of having committed murder…Yes we know there was a trial, yes we know there were two appeals, but the fact remains that the information in the originating document still stands. The applicants have not presented information or anything else to show that there has been a discharge,” White added.
Quoting from Section 18 of the Corrections Act, which says the superintendent in charge of the prison is authorised to detain and keep all individuals duly committed, White said, “What is clear is that the superintendent holds the body pursuant to judicial orders or until such persons is discharged in due course of law.They will remain until the prosecutorial process is completed.”
Assistant Deputy Director of Public Prosecutions Paula-Sue Ferguson, in addressing the court, emphasised that, “The Privy Council did not submit a verdict of acquittal. They remitted that to the Court of Appeal. What that means is that the applicants remain appellants. The Court of Appeal must make the determination of discharge or retrial. The writ of habeas corpus is at this time not an appropriate application. They remain appellants and they are still in custody pursuant to lawful charges.”
Attorney for Vybz Kartel, Isat Buchanan, in a hard-hitting submission, argued that “a conviction must exist for there to be authority to detain” the men.
“They are not detained on a conviction currently. The order from the Privy Council was quite specific, in that it actually quashed the convictions, it didn’t direct the court to quash the convictions. Upon doing that, the Apex Court when they make orders is quite specific. The issue for this court is to indicate under what authority would the men remain in custody,” he challenged.
According to Buchanan, there is no provision in the Judicature (Appellate Jurisdiction) Act, Court of Appeal legislation, which contemplates how a case like the current one should be handled.
“It is the position of the applicants that their custody status was not reverted to pretrial detention when their conviction was quashed. The laws of Jamaica is silent on the issue that is now before the court. We would object to any manufacturing or academic concoctions that would allow the lacuna to be filled to say that in the meantime they can remain in abeyance,” the attorney declared.
Added Buchanan, “The question before the court is to address the lacuna in the law if it finds that there is a lacuna. The sentence no longer exists and the conviction is void. What is also clear is that the effect of the order of the Privy Council is that they are cloaked in the presumption of innocence. Similarly they are no longer even viewed as convicts.
“We would submit that the detainer being a part of the executive can only act pursuant of the powers given to him by law in accordance with British jurisprudence, Jamaican legislation, and the constitution applicable to the case at Bar,” added Buchanan.
In declaring that, “No member of the executive can interfere with the liberty or property of a Jamaican citizen except on the condition that he can support the legality of his actions before a court of justice,” Buchanan argued that, “It is the tradition of Jamaican jurisdiction, Commonwealth jurisprudence, traditional British jurisprudence, and what justice looks like that judges should not shrink from deciding such issues in the face of the executive unable to clearly say the authority upon which they are detaining or depriving the applicants of their liberty.”
Justice Thomas is to make her ruling at 2:00 pm today.
(Jamaica Observer)
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