THE UNITED Kingdom Privy Council has quashed the convictions of a Caymanian man convicted of fraud because of what the British High Court saw as a number of blunders on the part of a Jamaican lawyer who prosecuted the case.
The Privy Council cites in its ruling the in-court conduct of Jamaican lawyer Richard Small, and the failure of the judge to exert authority over the proceedings in a Caymanian Court.
The Privy Council held on April 18 that the "prosecuting counsel conducted himself as no minister of justice should conduct himself. The trial judge failed to exert authority vested in him to control the proceedings and enforce proper standards of behaviour."
Barry Victor Randall who was sentenced to four and a half years' imprisonment and ordered to make compensation of US$500,000 had complained in his appeal to the Caymanian Court of Appeal, comprising retired Jamaican Judges, Mr. Justice Edward Zacca and Mr. Justice James Kerr, that his trial was conducted in a manner which was grossly and fundamentally unfair. The source of this unfairness, he said, was the conduct of prosecuting counsel, Mr. Richard Small, which he said undermined the integrity of the trial process and made prejudicial comments in the presence of the jury. He complained in his appeal that the trial judge, on occasions endorsed the behaviour of the prosecuting counsel.
However, the Court of Appeal did not agree with Randall and dismissed his appeal. He took his case to the Privy Council and won.
The Privy Council in its 21-page judgment referred to some of the comments made by Mr. Small at the trial in the presence of the jury and called on prosecutors not to embark on such practices. "The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice," the Privy Council said. The Privy Council referred to the transcript of the trial and said Mr. Small accused the appellant of "fakery" and "faking ignorance."
"In the course of Mr. Small's cross-examination of the appellant there occurred this exchange.
"Mr. Small: I am suggesting to you that your dishonesty is only matched by your brazenness?
The Court: Answer
The appellant: I would suggest that you are very wrong.
Mr. Small: Which is it? You are more dishonest than you are brazen or you are more brazen than you are dishonest."
The Privy Council said Mr. Small had also accused defence counsel Mr. Collins of wasting time and of creating a smoke-screen around the real issues. Mr. Small said "this is, this is you know what this is , my Lord, this sounds like the Tyson defence. You nibble on one ear and you go and nibble on the next."
The Privy Council said Mr. Small took it upon himself to reprove Mr. Collins when he remarked, "Don't be rude to the court. The court has upheld my objection."
The Privy Council in condemning the trial process said "there will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial. The right of a criminal defendant to a fair trial is absolute," the Privy Council added.
The Privy Council said that since the appellant had already served the sentence, it could not send back the case for a retrial.
