Dealing with crime and drug trafficking
No mockery of justice should be tolerated
from whichever quarter it comes
— S. Modeliar
The acquittal of Sada Curpen who was charged with trafficking in Subutex, a prohibited drug, has attracted comments from many quarters. It is not sufficient just to criticise. The drug problem requires a national surge above partisan politics at the social and educational levels. It also requires a study of the legal issues that surround the complex situation that arises when a witness refuses to testify. All cases, with a few exceptions, depend on the testimony of witnesses. Without such testimony a party calling a witness cannot prove his case. In the Sada Curpen case, the refusal of Cindy Legallant to testify left the prosecution and the magistrate with almost no choice. This masquerade resulted in the acquittal of the main accused.
The harm is done and it is time is to look ahead fast so that appropriate procedural and evidentiary solutions are found so as to avoid a repetition of the Cindy Legallant/Sada Curpen episode. A witness may either refuse to testify or if he/she testifies he/she may turn hostile. In the second situation a witness turns hostile when he/she gives testimony adverse to the party calling him/her. The rule is that where the prosecution or a party in a civil matter calls witness, the person calling that witness has no right to ask him/her leading questions that is questions that suggest the answers. If the witness is giving evidence adverse to the party calling him/her or adverse to the prosecution a motion may be made to the court to declare the witness hostile.
If the court allows the witness to be treated as hostile, the prosecution is allowed to ask that witness leading questions and even to cross examine him/her. In that way the evidence of that witness is ushered in as evidence and it will be up to the court to evaluate that evidence. In the Sada Curpen trial, Cindy Legallant was very careful or maybe learned in the law or maybe well and shrewdly advised. She did not turn hostile but simply decided not to testify. No reason was given and most probably she would have come forward with none. A witness who refuses to testify for no lawful reason stands to be punished by the court for contempt of court. The punishment however is only a way of asserting the dignity of court. It in no way assists the prosecution case.
Cindy Legallant did not explain why she was unwilling to testify. That refusal needs to be thoroughly investigated by the police under the supervision of the Director of Public Prosecutions. She may have refused because her initial statement against Sada Curpen was not true. We will recall that politics surrounded the arrest of Sada Curpen and his name was linked to that of a Minister. Could it be that there were some political motivation in the mind of the investigators in getting Cindy Legallant to make a statement against Sada Curpen? We should not hide the fact that investigations are very often politically orientated. One other feature of investigations is that the day to day steps in the investigation are aired in the media either by the police or by the lawyers representing the suspects. How on earth can the integrity of an investigation be protected in such circumstances! Names of witnesses are known and given wide publicity. Such an attitude can be fatal in a serious case of alleged drug trafficking as the acquittal of Sada Curpen has proved.
Cindy Legallant may have refused to testify because she was threatened. If that was the case, she should have been afforded protection. Witnesses in some cases need to be anonymous until the case goes for trial if the Director of Public Prosecutions so decides. Given the nature of certain cases and their sensitivity, the witnesses should not only be anonymous but also be subjected to protective measures if need be. Many jurisdictions have comprehensive legislation to deal with protective measures for witnesses. At the international level the International Criminal Court has such measures in its statute known as the Rome Statute.
The European Court of Human Rights has held that the interests of witnesses in general and those of victims called upon to testify in particular should be taken into consideration because their life, liberty or security of person may be at stake. The Court urged the parties to the European Convention to organize their criminal proceedings in such a way that those interests are not unjustifiably imperilled.
The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides that “victims should be treated with compassion and respect for their dignity”. The Declaration in its opening Preamble recognises that the victims of crime and the victims of abuse of power, and also frequently their families, witnesses and others who aid them, are unjustly subjected to economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights. Thought should be given to these principles in our legislation.
Cindy Legallant may have refused to testify because of a particular act on the part of the accused either directly or through intermediaries. Our law is silent on how to deal with such situation. In the United States there is procedure known as the Sirois hearing. When a prosecution witness either becomes unavailable to testify at trial or refuses to testify, the prosecution might allege that this is due to the defendant’s misconduct. In this situation, the prosecution may introduce the witness’s prior statements at trial if it can show that the defendant is responsible for or acquiesced in conduct that results in the witness’s non-appearance. The forum to establish this is a Sirois hearing. The hearing is named after Daniel Sirois, the defendant in Holtzman v Hellenbrand (1983). In order to obtain the hearing, the prosecution must allege specific facts that the defendant’s conduct induced the witness’s refusal. Absent waiver by the defendant, a hearing is needed to determine the admissibility of the prior statement, where the prosecution must establish defendant’s responsibility for a witness refusing to testify (People v Johnson 1999) [Issues In NY Criminal Law–Vol. 4, #16].
All the above matters should be of paramount interest to our criminal justice system that has so far heavily weighed the scales in favour of accused and suspects, a situation made worse by some rulings of the Privy Council. It is high time that the needs of victims, witnesses and society in general are weighed in the scales too. The matter is urgent in view of the wave of violence and drug trafficking that has gripped the country. Either we react aggressively or we become hostage to criminals and the mafia. The Director of Public Prosecutions has rightly ordered a thorough investigation in the refusal of Cindy Legallant not to testify. That investigation should leave no stone unturned. It should send a clear signal that in future such mockery of justice will not be tolerated from whichever quarter it comes.
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