The Queen v Timothy Henry et al

Ii .l \ . Ll~IJf'·.l. :\l' J· ii. Ii' Lg,]'' I tfL;: '~Jitt. h..\Ct .~lb ~JU1 tri· JJ;f~~ Ui.l·. l) 1 lJd l I , U:·.t l·. -.. ~'.'~ .... ;::· .. ~; :. _ /:. rr·~ ·-·/ .. -., ~,·.')! 1 ..• ,., ,,.. ';}' '\' d / - '\ '· ,~NTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE: (CRIMINAL) CASE NO 44/2002 THE QUEE.N v . TIMOTHY HENRY DAYNE SAMUEL JAMAL BROWNE Appearances: Mi· Cosbert Cumberbatch, DPl-:i IVlr Wendell Robinson and Mr Peytori l<night for the Crown J, , Mr DaneJlamilion Snr Mr Dane Hamilton Jr for the 1st and ;p':f De1'encants Mr Harold Lovell and Mr ,Jason Martin for the 2na [A!tendants RULING ON THE INQUIRY l"IJ M the conclusion of tiK1 PrE:liminary inquiry (Pl) the accused Timothy Hemry, D::ps '.·:a:r1ue! and .Jamal Browne wem cornmitted, on 5th April ~002. to stand trial in t\H~ ri 1ontl1 of May 2002 next. [?] The corrnr:itta! for tr!a! recites the namss of witnes~es including Ca!linford Jcrvs . ~ and V73Ughan Christian.

[3]Ti1e trial of the accused commenced on 16th June 200~1 in High Court with M(~ssers Ddne Harrlil\'::n Sm and Jr appearing for the ·1st an::! 3ro Defendants and Mr Harold i1JvE'll and Mr Jason Martin for the 211c1 Dnfendant.

[4]On the second day of the trial, Mr Cosbert Cumberbatch, Director of Public Prosecutions made certain allegations concerning the corruption uf witnc:sses by defence counsel. There was an immediate objection to tl1e remarks by Messers Hamilton and Lovell. The entire matter included a number of serious alltagations between the attorneys. When matters were brought to order the court directed that all attorneys should meet in chambers at 9.00am on the following day.

[5]At the meeting, which was attended by all the attorne1ys, certain aspects of the allegations were aired by the OPP and there were responses. In the end in the · face of the allegations w;td the presiding Judge determined that aJil' judicial inquiry was warranted in order to determine wheiher the trial had been prnjL1diced, wl1ether there was any improper conduct on the part of any defence counsel. [6} The Inquiry: ThH inquiry was held in open court on 20th June and comme11cf1c! at 12.05 pm in accordance with the procedure pre•1iously outlined in open court. The mquiry centered on the allegations by the OPP that defence cou:isel had entertained witnesses in the case who had given evidence at the F'i. This was done in private chambers and involved a staterne,r1t that was signed by one such v1!tness. It was further alleged that another witness was approached by defence counsel and asked it he cJuld be depended on to say what he had said on the pi-evious Sunday. 1410 2 04107 '0.1 17: 13 FAX .I 268 462 2465 MIN. LEGAL AFFAIR

[7]At the inquiry four witnesses gave evidence - Lois Allen, Collinford Jarvis, Vauuhn Christian and McKenzie .Joseph.

[8]The detai!t:?d testimony of all the witnesses is contained in the attached APPENDIX from which the following relevant facts emP;rge. 1. Ms Lois Allen, the mother of the second defendant, Dayne Samuel, after a meeting with Mr Martin, :her son's attorney, told Collinrord Jarvis (aka Meat Head) that Mr Martin wanted to see him. 2. ~larvis was not at that meeting between Wk; Allen and Mr Mart.in. 3. According to Ms l\llen she did not tell Jarvi~ to go to Mr Martin Chambers. 4. Jarvis either went to Mr rv1artin Chambers or was driven there by Mr Martin after h~~ was picked up in Cashew Hill. 5. Mr Ma.rtin and Jarvis werH alone in his ChEmbers. 6. Mr Martin told Jarvis that he wanted to hear the truth and ''I told him that I had made up my mind to tell the truth." ... l. Jarvis agreed to give IVlr Martin a statemert which Jarvis signed . 8. .Jarvis identifit::?d his sii~nature on the copy '.:If the statement s1ow11 to him in court. 9. Jarvis did not speak to Mr Ma1iin al the High Court on Mcmlay 16t:1 June or Tuesday 17ti1 June. rn. Jarvis was not paid and Ms Allen did no:t make any promise to h!rn. 1 ·1 I' Mr Martin took Jarvis home after the compietion of the statement.. 12. Mr Martin did not tell ,Jarvis what to say. · '13 According to Jarvis he W(~nt tc Mr Mari:in's office to toll him 1:he truth. 'i 4. Mr Martin riet Va 1Jgh an Christian on We:lnesday, June 1 f;th on the stairway at the;; Hi9h Court. ············· ·······--······--······-----·------ ·-· ........ ····---·····--······· ................................. ······ ·- ....... --·········-- -·---·· f4l 03 04107 '03 17:13 FAX 1 268 462 2465 MIN . LEGAL AFFAIR 15. Mr Martin ~ then Christian if he can depend on him to tell the truth. Christian said "yes." 16. Christian was not promised anything by Mr Martin 17. Jarvis told Inspector McKenzie that Mr Martin drove a green Honda car. Having regard to the facts, the questions are:- 1. Was the trial compromised to the extent that its continuance would be unfair to the c:1ccused.? 2. Are the actions of Mr Martin proper or irnpro:Jer.? [1 O] The Submissions: The essence _of the submissions made to the Court by Messers Love!! and Hamilton is that, Mr Martin's actions speak no evil. They do not offend the due adrninistratkm of justice. [ 11] A.cr::ordirig to learned counsel Mr Harold Lovell, there is no property in 3ny witnm:;!~. For this proposition he cited Harmony Shipping v Davis ('1979) 3 ALL ER ·:n·, 'i80j and 18fa. In the circ1.1mstances counsel submitted that the .allegation that could be m'1de is that of impropriety which in any event arn baseless and to-.al y unfounded it was further submitted by counsel that Mr Martin had a duty ard a right to pursue his duties in a fearless and forthright manner and that this duty w2.s dischar·ged by wholly ethical and pmper methods. Tho proposition that there is no property in a witness which 'Nas enunciated in the Harmony Shipping Case is in turn based on the Lciw :Society Guide to the 14104 "-ll"~'tli ·0:.1 17:1:! Fi\.\ I 268 4fi2 24ti5 MIN. l.ECAl. AFfi'Arn Professional Conduct of Solicitors 1944. It was affirmed and approved in 19Ei3 by Lord Paker CJ and the judges and published in the Law Society's Gazettt: for February 1983.

[13]While the validity of the rule cannolt be questioned in irelation to Britain, tile question ls whether the Law Society Guide to the Professional Conduct of Solicitors has any legal effect in Antigua and Barbuda whem for one thing the leual profession is fused.

[14]In Antigua and Barbuda the legal profElssion is governed by the Legal Profession Act 1995 No· 9. This Act of Parliament contains a Cade of Ethics of \/littch paragraphs 2 ·1, 25 of Part A and 2(2) and 27 of Prut B are relevant. They provide as fo!!ows: "21 An atk1rney-nt-law shall alwc:iys act in the best interest of his client to represent hitn honestly, competently a1id zealously and erideavou:- by all fair and honourable means foob,:ain for hirn the benefit of any and every remedy and defencewl·iich is authorized by l2w, steBdfastly bearin9 in mind . that the duties ~nd responsibilities of the attomey~at-law are to be carriE:d out w;thin and not wiH1Qut l:he bounds of law. 2£5 It is the rigilt of an attorney-at-law to undertake the dr;fenc0 of a person accused of a crime rt-1gardiess o.f his own personal opinion Is· to do the guilt of me accused and. hciv ng undertaken such dofr:nr;e !1e is bound by a\l fair and honourable means to pre~;ent every defence that the law permit~:: so that no P"::rson n•aybe deprived of lifE~ or liberty r;)(cept by due ptt>Ges~.; oflaw. 1~.n attomey-at-law shall not withhold facts or sec:ret1 witne.ssF.;s in order to e;;t~lblish ttie guilt or innocence of tl:e accused. ........ ································ ----············-·········------··-··· ......... . ....................... ··························· [4105 04107 '03 .17: L3 FAX I 268 462 2465 MIN. LEGAL AFFAIR 27 Ari attorney.at-law shall not knowingly use perjured testimony or ·false evidence or participate in the creation of or use of evidence which he knows to b1; false."

[15]Wtiat these provisions do is to prescribe a context within which attorneys muE.t act in the defebce of their client. And, to use the language of paragraph 21, "within the bounds of the law." More importantly, however, in the present context iB f~1e effect of tht3 Legal Profession Act on the rule in the Harmony Shipping Case. Quite simply the matter cannot prevail so long as the Parliament of Antigua and Barbuda has covered the field.

[16]The phras$ "fair and honourable" is used both in paragrnphs 21 and 25 of the Fourth Schedule to th~ Act. These are two plain words with a multitude of implications. At a vefy basic level it can be said that what is not fair and honourable may be unf$.ir and imprope~r. Mr Hamilton, who con~urred with Mr Lovell in every respect, submitted th&t the ·171 l . sole question before 1,11e Court was wt1ether there. was an improper contact : ~ . . . ! :- be tween Mr Martin and Mt Jarvis. And on that basis he advanced a numt.er of factors which must be Considered. Th~~se are: 1. Is a shOrt form Pl a tri;;il of a cause? 2. The fact thnt the concern of Mr Martin was the conduct c)f ::he police 9uring the investigation of the death. 3. The wi~nesG statement of Collinford Jarvis pertains to the co1duct of the police. ··\. ·····--· ................................. ··-·· ·····-····- - ----·-- - ------- - ------- ----- -- ------------ ·-----·-------·----- -·--·········· r?J 06 l).L 07 '03 1.7: l 3 FAX 1 268 462 246~ MIN. LEGAL AFFAIR 4. It is irnrnaterial whether rvlr Martin or Ms Lois fa.lien asked the witness to speak the truth. 5.: The witness was not induced or rewarded for rn aking the statement. [181 It is considered that while the matter 01f a trial should be pa1t of the wider equatbn its absence therefrom is not conclusiv1e.. The fact which remains is ihat a judic;al process h9d started with the committal of the accused in April 2002 and the names of the witdesses endorsed on the P'l1 ~ Committal For Trial included Ccllinford .Jarvis and Vaughan Christ!ail. Further still, the same names appeared at the back o·f the indictment dated and filed on 12111 September, 2002. These are all part o'f a ! • ~ c:onti11uing judi9ial process, A dictum of Lard Diplock in ccme of R v. Sang (197'9) ,,., 2 ALL ER ·t22'1, 1229 is relevi:mt to Uw debate. He sBid this: ;.Outside the limited field in which, for historical reasons the fuhctions of a trial judge e·xtend to imposi119 sanctions for irnprriFer conduct on the pmt of the prosecution brsfom the cqmmencement of the proce~~dings in ir1duclng the accused by threats favour oc trickery to provide evidence again:~t himself." (19.l By implication the dictum rnak;?s the point quite clearly that ·the absence of a trial is n0t a bar to !he imposition cf sanctions on counsel for improper conduct in mlation to accused persons. Naturally, this ei.:tends to defence counsel. And while 1.hr::re can be no issur:r w;th the concc~rns of Mr Martin regarding the conduct of the ~olice there is a lega! context in which it can and must be adclress::;cJ. [20J / 1• similar comment ma.; bi:: made on the matter of rv1r Jason Martin a::;ki·10 . Vaughan Christiar1 whether he can be depended on to speak the truth. On the . ···)···---·-·······-··· ········----··--- - ..... ······· ········--········-·············· ----------··················-----------·-·-··············- -------------------······· -·-· fill 0 7 04107 03 17: 13 FAX 1 2B8 462 2465 TllIN. LEGAL AFFA TR surf ace this may appear to be quite innocent but the fact is that Mr Mardn is defence counsel and Christian is a Crown witness who tendered evidence at the Pl. When this is juxtaposed with the concern with the conduct of the police different inferences may be drawn.

[21]In so far as the OPP is concerned the! whole episode of the contact involving Mr Martin, the mother of one of the accu:sed and two Crown witnesses is unethical, improper and outside the bounds of pmper conduct. The CIPP also pointed to the fact that there was cross examination at ttm Pl and that there is a procedure !or testing the voluntariness of a statemen:t, namely the voire dire. Anything outside of this would be· improper. Therefore, accordl;ng to the IJPP, the taking of a r;: statement from a Crown witness statement hav,ng him sign it and then keeping it a secret is an aspect of Improper conduct.

[22]In support of his submissions the OPP referre9. the Court to paragraphs 25 of the Code of Ethic1~f the OECS Bar and section 61& of the writtein standards of ihe- Bar I ; .. · of England and Wales which states: 1.:. "Unless otherwise d!rected by the Cou~ or with the representa~ive of the opposing side or his couns~I, a barristl~r should not communicate directly or i11directly with ~ny witness whether or not the witness is his client once! that wifness has ::.tarted to give evidence which it has been contended.I~ · ;> While the foregoing has not\ applicafon in Antigua e>nd Barbuda. it, howov~::r, "231 t serves to give some indication as to strictures placed on contact with witnesses in ·--------·-----------··- ···-·Ii··-··-·-·--·-··-···-··------·---·---·----··-··-----------········-- ·--------··- --------------·------ ----- .. -----···· @os 04107 '03 17:13 FAX 1 268 462 2465 MIN.LEGAL AFFAIR £.mother jurisdiction. But while tile Code of Ethics does not address the matter in such strict and direct terms, however, being bound by all fair and reasonable means undaubtedly has a similar objectiv.e. (24] Conclusion: The questions whether:- (a) the trial had br:~en prejudiced; or (b) the conduct of Mr Martin in all the circumstances was proper or improper, must now ~e determined.

[25]As indicated b_efore, the matter of the3 commencement of a trial cannot be used as a m?lsk to hide the issue. Even if the trio I had not commenced on Sunday 1511i June it did commence on the following day. But before that the judicial precess was well in train by virtue of the committal for trial, the names of the witne::.ses mentioned in the committal, the d~'awing and filing of the indictment en 12lh Septen1ber 2002 with the names of the witnesses at th~~ back ttlereof, noticr: of the commencement of the trial a few days prior to 16th June 2003 and the actual commencement on that date. [26J In the generol sct1eme of things, a person who for example threatens a 11Jitness pr:m t1J the commencement of the particular trial cannot eseape conviction tor a criminal offence by saying that Hie trial had not commenced, There can ha'dlJ' be a debate about that.

[27]Improper conduct is a term comrmmly used !n the vanous professior:s to categorize conduct in the context of disciplinary proceedin~1s. In this regard it \'ias observed by Smith JA.:1Arthur Williams v Douglas Manley and H.A YQung .A (1973) 20 WIR 333, 336 Act that wrong or improper conduct is misconduct. Such conduct embraces a wide range of actions. It may be miner or it may be serious. [213] In the case of Casimir v Shillingford (1967) 10 WIR 269, 270 A.M Lewis, CJ had this to say: "During the course of the arg1ument. I made refer1~nce to the fact that it was not proper (I put iit no higher than that) for a barrister 'Nho is going to appear in the cause to swear an affidavit in the same cause, even if he swear lt In his capacity as solicitor. It puts the cou·rt in an embarrassing position." In other words, one cannot give evidence in a matter and argue the samE! case before the court. Such action does not involve anything of which tile court or the parties will not be aware at some point.

[29]To pre-empt the jurisdictlcm of the Court was considered improper conduct on the part of the attorneys for the appellants so held Hamel Smith, JA in the caso of Wallen and Another v. Baptiste ctnd others (No. 2) {1994) 45 WIR 405, 445, Likewise in Re Erown (1992) 19 WIR a failme to account for and pay over clients money was held to be improper conduct. tn Re T (a barrister) (1981) 2 ALL. 1;;R 1104, it w~s held that in relation to co 1·1duct which was plainly dishonest, it was improper far a barrister to make inquiriFs o'f the ----. " - " -... -. -- -" - -----. -- --- " -" " -. " . " -. -. -" . . -- " . --.. - " . --.. - . - . --- " --. " . . . -. . . . . . .. , .. -. :·; ... ~ ,; .. ·• :. ; . ~ .. ~ " ... 14109 O 4 / o 7 ' 0 3 1 7 : l 3 FAX l 2 6 8 4 6 2 2 4 6 5 MIN. LEGAL AFFAIR prosecuting authorities to discover where they drew the line between conduct which would lead to criminal proceedings and conduct which would not.

[31]A comment in open Coll rt by counsel that the Court had '1set the seal on dishonesty" after there was. a refusa! t<~ re-open an appeal wc::s heid to be impro::)er conduct. Speaking for the Board in Hilboume v Law Society of Singeipore (1978) 2 ALL. E.R 766, 759 Lord Rus:;ell of l<Hlowan said: *""' "Thf. lordships would obserJe that in their opinion the rem;::irk at that juncture was offensively critical of jurlges, was intende.o to be so and by ordinary standards of the ~sututed impro9er conduct"

[32]Having regard to the evidence the Code of Ethics ancl the jurisprudence on ~ improper conduct it is inesGapabJe conclusion that Mr Martin's conduct was . --,;:~-----~"-··--................... ·-··-•-""'"'"'···-····-··"'"""•···'""''""'"""'''""'""''··-- .. ,. ...................... , .. ..,, .. ,,. impr.?pe_~ __ ar·1d_te:~~5..~?~~u_:? .. ~ .. -.~~1~ P~EY . ~;1·s_i_?n __ ?f justice. This is a strong statem<mt but it is well groLnded. For one thing the institutional legal :rarnework obviated lhe rHJad for such action. !=or even if HH~ statement was n.1led lo have been madt: vokmturily tt1at is riat the end of the 1111:.tter • far from that. They had to b1~ put through the full ngours of the trial and h1 the end th8 juty has the final say. If indeed the coPduct of the police ~vas a concern there are 1Jtr1er persons whc had •Jeen detained and who could also assist. Thi:; whole episode involving Collilfcrd Jarvis wg_~_ deli9~i§_~~-'-~~:igus and irnpr9p~LWJli.<2ti.. .. c!9~t.n._ot augur well for t_~e --·---·--··· administration of justice in Antigua and Barbud8. By any standard it rmmt be ... -····-··· ····--····- ·- ···-· -····- ·····-····-····- ··-·-···-----···---···········-·"·········· ------- ·····- ------·. - ------·--· ....... ··-··- ------· ··---------------·---·- -------··----·-------····· l4J l 0 0 ,1 / 0 7 ' :J 3 l 7 :. 13 FAX l 2 6 8 4 6 2 2 4 6 5 MIN. LEGAL AFFAIR give a statement ~1.1.k!::lJ!.VDQff !9J§I!Y..l9.ib~9.HI~!: ~J~~ ~Q~ .. ~~t:pJt.J~§~§.!DJTI.l,IJ)i~igp._fQr ... ·-"·-- •· ""'"'· ., •.. ---, ........ __ .,,, .. ,,,, ·"' : •. ;,.·, • •• > '" ,.. ''" sorne other approp~i.9~q_ca~i01J . .._... ..... _,,_~ '~--.......:"'""""''"'':'''.,.,.-,~·'",._,,.' . .

[33]Perhaps a reminder of the ancient judlicial attitude to the matter of crown witnesses may help to put the matter in its proper context. In the cane of R. v. Kellett (1975) 3 ALL E.R 468, 478 the Bishop of Lincoln's Case (1637) 3 State Tri in which one of the charges was tampering with the King's witnesse1S, ls quoted extensively. -/. The case was heard in the Court""Star Cl1amber where tt1e .A.rchblsrop of .\ C~mterbury said. "lh!t.ffJBtte..r_[§J!l and howsoever it be not subornation of . perjury, yet to tampm with witnesses, to threaten, deter, affright. corrupt or tc1 silence or abtent those that are to · witness a truth and to give evidence in a. court of justice are ejusctern naturae a very to«i1 'crlm'~ and a most ,Q.Qjgus detestable foulf1~~:a~Yfff]n cil what conciition -s·aevaPWe'B·e:"-- ·· :'.:::-_::::::c ----·---.. - ··:·······"~·-····-·-··· ·· .. ··· ......... . Lord Coventrt in the same case said: "Now it may be said, said he, may riot a man meddle nor question a witness?. Yes but with tertaio limitations, for else, if the witness bt~ made and corrupted, the jurors and judges bott1 of them may be abused, and if that witness may be led and imilructed by questions or the like, it comes all to me as subornation." · · [3Lij To return to the matter of the conduct nf counsel, that on Wednesday· 18th June 2003 is even more to tile point. On H1is date although the jury was not present. the accused had been placed in their charge and the court was sitting. In tl'1e circumstances it is simply inconceivable that a witness could be approached on the stairway of the court and asked for assurances that he would speak thE! truth. -----------------··-·--- . ---- ---------·-··- -··· --···---·····-· --· .. --·--·--·-·- .. ···-······ -----··· -- ·····----······ ..... -----·-··· ·--· ·-····· -· ..... 04:07 '03 17:13 FAX l 268 462 2465 MIN. LEGAL AFFAIR Wt1at is even more astonishing is that this was done after all the tumult of the (\ ,,,.,_._ ..... ,... ........... ....--.• , .•. ,... •. «~-' .... --~--.. -,.,,,·"····· -. .... , ... ,,... --- ~·---.,__.,_._. _____ ,;:~:.'l!;~-...... , ..... -----~~-~-·-··-·--..--~-.... ---"~· u pr~yl2_us,, .~3-1 in _ _g_Q~,D_ g~~.'.!_~n~-~~!e,:r. .. ~~- ~-~~!!.~iJD Ch.am be~~ which lasted for more than one hour and which was attended by counsel. In fact he sought 1he1n to explain his actions except that tl1E~ evidence at the inquiry posted a :;!it1iltly different picture. [35J To ask a witness, or more partlcularlir a Crown witness, tc1 speak the truth may on the suriace be quite innocent but tllern may be a hos! of serious implications depending on the factual substratum. But beyond that he old adage that justice , must not only be dcne but must neGessarily be seen to be done comes to the I • ~ / •· . . ,. ('1"1 .::o, i\t tl1is juncture it ia of some importance to note that although this rule in Harmony Shipping Case .was held not to be applicable to Antigua and Barbuda, a subseqw~nt variation of t~1at rule must be noted. In R v. Kelly (198$) The rimes, 27 Jul}.f 1995 it was held that once a witness had given evidenc:e for the Crown in a criminal ca:E.e, it would always be a matter ior the Judge'~• discretion whetht!f that witness might be inte1i;iewed by either side and whetherany statement taken fmm him might be produced ln evidence.

[37]While the content of the statement taken fr-om Coilinford Jarvis, is not the com:;rn of the inquiry, it is worth considering having regard to the station of the maker, the cc rrnctnoss of the grammar and in particular this sentence: " ............ -----· ............... -------·-- - -- -- !411 2 ~lil\T. LEGAL AFFAJ R U4107 '03 17:1:1 FY\ 1 268 462 2465 a1\ftm Rage had finished with rr~e. he c<:irried McKenzie, Bad News and Mohan individually into the roam." [381 ME_!\i.~~Li:!.'.~_9~~.qucL§l§f,~J!or!J_~~i~~~P!.qrJ.¥L §b_o._~§.-~e.n·_~.§~r.~g-~r.Q Jot .. ~h~.. 11 judicial process of which he is part. This is hea11ily emphasized by his concluct ~ 1 .. __ -·- . ...-.~ ..... ......-..---~·-·-· ~-....... ~ ... ·------------- especially on Wednesday last coupled with the statement made in Chambers earlier that day. It was also neittier fair or reasonable. The legal system and in particular the criminal process cannot s~ice if it is to be: .lliAT assaulted by conduct of this nature. l_t is1--~rye.r~J9.!f;:,£1~~~~'SS§!X thi15 !XP~ . .9L~Q!!dl£~~:. A . \\ ~~?~-~,.~ir:cir.~1~~Y· , S~9~ .. 59n~~~!._!.f!~Y in J~~ -~·~r1-.'~!2Pria~i::._c_ase amount to ;) contempt of ::;ourl [-4'1] It is cunsicleied ttiat the trial has been prejudiced and .hen:e cannot be fair if c:m1inl11-:d.. For this reason it was aborted and the case will be traversed to the nexl ;Jss!zes. And it is vory strongly 1Jrgcd that counsel, Mr Martin, out of consideration frx the accused consider not appearing at th3t trial. f.4 'i l lt is hoped and also expected that this inquiiy and the ruling thereon will ser11e as 3 wamino to all concerned. Winning at all <::ost 's not and never will be a constitue1:t c·f our legal ethics. Lik13wise justice at all cost t1as rrs legal and constitution2I lh1itations. The Oitecror of Pubiir; Prosecution is of course ernpowered to take whatever action, if any, he considered appropriate in the circumstances. ' ••• N • 0 o 0 0 o o. N • o o o. M 0 0 • o • o o • • o o o o o 0 • 0 0 o o 0 o. 0 0. o • o • • 0 o 0 0 • • • • • 0. o ". •' 0 .- • 0 0 "0. 0 o 0 , ••••• ~·- 0 0 0 ·,·· ...... : .................................................................................................................... . 14113 04/l17 . 03 17: i :'. FAX 1 268 462 2465 MIN.LEGAL .'\FFAm [431 Finally, th,ere i~~g~~~'!l~~l!'JVi!~ s~nior cou~s~L.Mr..L,o.ye.JL~~~-~ .. ~~ -~-~_iq!h~L.1~is eEi~°-~~-??ul~-~8.~a~-~-tt~:r_~?._ut~~i?r1°.~.~?u~~~-l._~!~~~-~!mP~_ an~~er is that_thi~.!~ \l\ of_~~~_ow_~-~~~!~~. Errol L Thomas High C9ut;. Ju doe .. :?6'l '( 0 >

ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE: (CRIMINAL) CA$E NO 4412002 THE QUEEN TIMOTHY HENRY DAYNE SAMUEL JAMAL BROWNE Appearances: M l ‘ Cosbert Cumberbatch, OPP Mr Wendell Robinson and Mr Peyton Knight for the Crown msohtmlclip1/01/clip_image008.jpg” /> align=”left” hspace=”12″ /> align=”left” hspace=”12″ /> Mr Dane Hamilton Snr Dane Hamilton Jr for the 1 st and Def’enc ants Mr Harold Love}} and Mr ,Jason Maltin for the 2 nd befendantg RULING ON THE INQU!RY At the conclusion of the Prelirninary inquiry (Pi) the accused Timothy Henry, e; and .Jamal Browne were committed, on 5 th April 2002, to stand triäi the month of May 2002 next. The for trial recites the narnes of witnesses including u i €rv s and Vaughan Christian. The t[ial of the accused commenced on June 2003 in High Court. with Messers Dana Snr and appearing fot the 1 st and 3 rd Defendants and Mr Harofd t..c,vell and Jason Martin for the 2nd Defendant. On tl’ie second day of the trial, Mr Cosbert Cumberbatch, Director of Public Prosecutions made certain allegations concerning the corruption of witnesses by defence counsel. There was an irnmediate objection to the remarks by Messers Hamilton and Lovell. The entire matter included a number of serious allegations between the attorneys, When matters were brought to order the court directed that al! attorneys should meet in chambers at 9.00am on the following day. At the meeting, which was attended by all the attorneys, certain aspects of the altegations were aired by the DPP and there were responses. tn the end in the face of the aitegations and the presiding Judge determ ned that äRjudiciül inauiry was warranted iri order to determine whether the trial had been prejudiced, whethel there was any improper conduct on the part of any defence counsel, The Inquiry: The inquiry was hetd in open court on 20 th June and commenced at 12.05 prm in accordance with the procedure previously outlined in open court, The inquiry centered on the allegations by the DPP that defence counsel had entertained witnesses it”) the case who had given evidence at the Pi. This was done in private chambers and involved a staternent that was signed by one such witness. It was further afieged that another witness was approached by defence counsel and asked it he could be depended on to gay wlnat ile had said on the previous Sunday, 04/07 0.3 r•A.x 4-62 MIN. LEGAL AFFAIR At the inquiry four witnesses gave evidence – Lois At!en, Collinford Jarvis, Vaughn Christian and McKenzie .Joseph. The detailed testimony of all the witne:sses is coritained in the attached APPENDIX from which the follcwing relevant facts emerge, Ms Lois Allen, the mother of the second defendant, Clayne, Samuel, after a meeting with Mr Martin, her son’s attomeyj told Colliniord Jarvis (aka Meat Head) that Mr Mattin wanted to see him.

2.darvi.q was not. at that meeting between Allen and Mr Marlin,

3.According to Ms Allen she did not tell Jarvis to go to Mr Martin Charnbers.

4.Jarvis either went to Mr Martin Chambere or was driven there by Mr Martin after he was picked up in Cashew Hill. 5, Ml’ Martin and Jarvis were alone it his ChE mbers.

6.Mr Martin told Jarvis, that he wanted to hear the truth and “1 told him that I had made up my rnind to teli the truth.” Jan./is agreed to give Mr Martin a statemert which Jarvis signed.

8.Jarvis identified his signature on the copy of (he statement snown to hirn in court. Q u!æviG did not speak to MI’ Maltin at the High Coult on Mcnclay th dune or Tuesday 17 th June. Jarvis was not paid and Ms Alfen did not make any promise to h!rn. Mr Martin took Jervis home after the of the statetnent..

[13]While the validity of the rule cannot be questioned in relation to Britain, the question is whether the Law Society Guide to the Professional Conduz•t of Solicitors has any legal effect in Antigua and Barbuda where for one thing the legal profession is fused. h”‘ Antigua and Barbuda the legal profession is governed by the Legal Profession Act 1995 No•y. This Act of Parliarnent contains a Code of Ethics of wh•ch paragraphs 21, 25 of Part A and 2(2) and 27 of Part B are relevant. They prcjvide An attorneyat-law shell always act in (he hest interest of his client to represent hitn honestly, competently and zealously and endeavour by äli fair and honDtffäble means to 0b k äin for him the berlefit of any and every rernedy and defencre wilich is authorized by low, steadfastly bearing in mind thet the duties and responsibilities of t}’le attorney-at-law are to be carried out w;thin and not without the bourtds of law.

4.Ml’ Martin met Vaughan Christian on Wednesday, June 18 th on the stairway at the High Cou:t. 04/07 '03 .17: : 13 FAX

16.Mr Martin then Christian if he can depend on him to tett the truth, Christian said “yes.” Christian was not promised anything by Mr Martin Jarvis told inspector IUcKenzie that Mr Martin drove a green Honda car. Having regard to the facts, the questions are: e 1 , Was the trial compromised to the extent that its continuance would be unfair to the accused.? 2 Are the actions of Mr Martin proper or improoer.?

[10]The Submissions: The essence of the submissions rnade to the Coun by Messers Lovell And Harnifton Is that, Mr Martin’s actions speak no evil, They do not offend the due administration of justice. According to learned counsel Mr Harold Lovell there is no property in any witne$%. For this proposition he cited Harmony Shipping v. Davis (‘1979) 3 ALL ER 7? , ‘i80j and i8’1a, in the circumstüi’lces counsel submitted that the allegation that could be made is that of impropriety which in any event are baseless and unfounded was further submitted By counsel that Mt Méttin had a duty ar.d a right to pursue his duties in a feailess and manner and that this duty wes discharged by wholly ethical And proper methods. Tho proposition that there is no property in a witness which was enunciated in the Harmony Shipping Case is in turn based On the Law Society Guide to the I 462 a FFA T R Professional conduct of Solicitors 1944. it was affirmed ard approved in 1963 by Lord Paker CJ and the judges and published in the Law Society’s Gazette for February 1963.

2.5 it is the right of an attorney-ablau to undertake the defence of a person accused of a crime regardless of his own personal opinion is to do the guilt of the accused at)d havng undertaken such defence he is bound by fair and honourable means to pregent every defence ti-jat the taw perlTlit$ $0 {hat no person maybe deprived of fife or liberty gxcept by due process of law. An attomey-at-law ait not withhold facts or secret* •wRneG$ ,s in order fo establish the guilt or innocence of the accused, align=”left” hspace=”12″ /> align=”left” hspace=”12″ /> 04/07 FAX 27 Art attorney-at-law shall not knowingly use perjured testimony or false evidence or participate in the creation of or use of evidence which he knows to be false.” What these provisions do is to prescribe a context within which attorneys must act in the defence of their client. And, to use the language of paragraph 21, “within the bounds of the law.” More importantty, however, in the present context is tne effect of the Legal Profession Act on the rule in the Harrnony Shipping Case. Quite simply the matter cannot prevail so long as the Parliament of Antigua al’ld Barbuda has covered The field. the phrase “fair and honourable” is used both in paragraphs 21 and 25 of the Fourth Schedule to the Act. These are two plain words with a muititucle of implications. At a very basic level it can be said that what is not fair and honoujable may be unfair and improper. Mr Harni}ton, who concurred with Mr Lovell ill every respect, submitted thet tne sole question before the Court was whether there was an improper, between Mr Martin and Mr Jarvis. And on that basis he advanced a number of factors w h iich must be considered. These are: align=”left” hspace=”12″ /> 1 Is a short fem PI a trial of a cause?

2.the fact that the concern of Mr Martin was the conduct of •:he police during the investigation of the death, 3 the witnesc statetnert of Collinford Jarvis pertains to the conduct of the police. align=”left” hspace=”12″ /> it, is immaterial whether Mr Martin or Ms Lois Allen asked the witness to speak the truth.

[27]improper conduct js a term commonly used i n the various professions to categorize coaduct in the context of disciplinary proceedings. In this regard it was M observed by Smith JA’Årthur Williams v Douglas Manley and HIA Young (1973) 20 WIR 333, 336 Act that wrong or improper conduct is misconduct. Such conduct embraces a wide range of actions. it may be mincr or it may be serious. 128] In the case of Casimir v Shillingford (1967) 10 WIR 269, 270 A.M Lewis, CJ had this to say.’ “During the course of the argument t made reference to the fact that ht vvas not proper (l put jit no higher than tha) for a barrister who is going to appear in the cause to swear an affidavit in the game cause, even if he swear it In his capacity as solicitor. It puts the cou”rt in an embarrassing position.” align=”left” hspace=”12″ /> align=”left” hspace=”12″ /> In other words, one cannot give evidence in a matter ard argue the same case before the court. Such action does not involve anything of which the court or the parties will not be aware at some point. [291 To preærnpt the jurisdicticn of the Court was considered improper conduct on the part of the attorneys for the appe[ants go held Hamel smith, JA iri the case of Wal!en and Another v. Baptiste and others (No. 2) {1994) 45 WIR 405, 445, Likewise in Re Erown (1992) WIR a failure to account for and pay over clients money was held to be irnproper conducta tn Re T (a barrister) (1981) 2 ALL ER 1104, it was held that in relation to conduct w h ich was plainly dishonest, it was improper for a barrister to make inquiries of the 04/ 1 7 : 1 3 [321 1 @ 09 prosecuting authorities to discover vvhere they drew the line between conduct which would lead to criminal proceedings and conduct which would not, A comment in open Court by counsef that the Court had “set the seal on dishonesty” after there was a refusa! to re-open an appeal was held to be impro conduct. Speaking for the Board in Hilbourne v Law Society of Singapore 0978) 2 ALL. ESR 756, 759 Lord Rus:seil of Killowan said: “Th’l%rdships would observe that in their opinion the remark at that juncture was offensively critical of judges, was intended to be so and by ordinary standards of the improper conduct” Having regard to the evidence the Code of Ethics and the jurisprudence on improper conduct it is inescapable conclusion {hat Mr Martin i s conduct, was improper and tends towatds the perversion ot justice, This is a strong statement but it Is well grounded. For one thing the ingtitvtiorvai legal framework. obviated the need for such action, For even if the statement was ruled to have beeri Inade voluntarily that is not the end of the • far from that. They had to be put through the full of the t!iaå and in the end the jury has the final saye if ir;deed the conduct al? the police vvas coticern there are other persons whe had been detained and who could also assist. The whole episode involving Collinf(‘ld align=”left” /> was deliberate, serious and irnpcoperzyyhlch _does not augur weii for the adnaini$tration of justice in Antigua and Barbuda. By any standard it mt.l$t be higl’lty improper for de f ence cguosql_etC) lake a Crown witness to his Chambers to 04; 03 1 2,165 . give a statement unknown officially to the other side and keep it ammunitigt% for some other appropriate occasi01’_t. [331 Perhaps a reminder of the ancient judicial attitude to the matter of crown witnesses may help to put the matter in its proper context. In the cage of R v. Kellett (1975) 3 ALL 468, 478 the Bishop of Lincoln’s Case (1637) 3 State •rtp in which one of the charges was tampering with the King’s witnesses, is quoted extensively. The was heard in the Court’ Star Chamber where the Archbishop of Canterbury said. “The matter is ii! and howsoever it be not subornation of perjury, yet to tamper with witnesses, to threaten, deter, affright, corrupt or to silence or atxent those that are to witness a truth and to give evidence in e court of justice are ejusdem naturae a vecy foWi crirne and a most Qdjgu$ detestable fault; in any man or what condition Lord Coventry in the same cage said: “Now it may be said, said he, may not man meddle na p question a witness?. Yes but with certain limitations, for else, if the witness be made and corrupted, the jurors and judges both of them may be abused, and if that witness may be led and instructed by questions or the like, it comes al! to rne as subornation,” To return to the matter of the conduct of counsel, that on Wednesday 18 th dune 2003 is even rnore to the point, On this date aith01tgh the jury was not present, the accused had been placed in their charge and the court was sitting. In the circumstances it is simply inconceivable that a witness could be approached on the stairway of the court and asked for assurances that he would speak the truth, 17 : 1 3 •1 What is even more astopishing is that this was done after all the tu mult ot the previous day ingen court and after the meeting in Ch amber? which lasted for more than one hour and which was ettended by counsel, In fact he sought (hen to explain his actions except that the evidence at the inquiry posted a $iiqhtiy different picture. To ask a witness, oc more particularly a Crown witness, to speak the truth may on the sufface be quite innocent but there may be a hosi of serious imp!ications depending the factual substratum. But beyond that he old adage that justice rnust not only be done but must necessarily be seen to be done comes to the

[20]A sinoilar comment may be made cn the rt’iatter of Ml Jason Martin Vaughan Christian whether he carl he depended on to speak the tri.lth. on the ()4 /’07 0.3 surface this may appear to be quite innocent but the fact is that Mr Marin is defence counsel and Christian is a Crown witness who tendered evidence at the PI, When this is juxtaposed with the concern with the conduct of the police different inferences may be drawn. align=”left” hspace=”12″ /> align=”left” hspace=”12″ /> align=”left” hspace=”12″ /> align=”left” hspace=”12″ /> in so far as the DPP is concerned the whole episode of the contact invoiving Mr Martin, the mother of one of the accused and two Crown witnesses is unethical, improper and outside the bounds of proper conduct. The CPP also pointed to the fact that there was cross examination at the PI and that tt’lere is a procedure tor testing the voluntariness of a statement, namely the voire dire. Anything outside of this would be improper Therefore, according to the DPP, the taking of (a staternent from a Crown witness stalement having him sign it and then keeping it a secret is an aspect of improper conduct. [221 In support of his submissions the DPP referred the Court to paragraphs 25 of tl•le Code cf Ethicoc,f the OECS Bar and section 615 of the written standards of the Bar of England and Wales which stales: “Untess otherwise directed by the Court or with the representa t ive of the opposing side or his counsel. a ba r rister should not. cornmunicate directly or indirectly with any witness Whether or not the witness is his client once that witness has started to give evidence which it has been contended?’

[23]White the foregoing has nox applicalnn in Antigua end Barbuda. it, however, serves to give some indication as to strictures placed on contact with witnesses in 04/07 J another jurisdiction. But while the Code of Ethics does not address the matter in such strict and direct terms, however, being bound by all fair and reasonable means undoubtedly has a similar objective. 1241 Conclusion: the questions whether: the trial had been prejudiced; or the conduct of Mr Mattin in the circumstances was. proper or improper, must now be determined. align=”left” hspace=”12″ /> 125] As indicated before, the matter of the commencement of a trial cannot he as a mask to hide the issue. Even if the trial had not comrnenced on Sunday 15 th dulle it did commence on the following day. But before that the judicia! c,rccess was wen in train by vitiue of the committal for trial, the names of the witnesses mentioned in the committal, the drawing and filing of the indictment cn th September 2002 with the names of the witnesses at the back thereof, notice 01 the commencement cf the trial a few days prior to •16 th June 2003 and the actual commence;nent on that dale, [261 in the general scheme of things, a person who for exaniple threaiens a V}itness prior to tile commencement of the particutar triai cannot escape conviction for a criminat offence by saying that the trial had not commenced, There can he •dir be a debate about that.

[30]At this juncture it is of some importance to note that although this rule in Harmony Shipping Case was held not to be appijcabie to Aritigua and Barbuda, a ubsequent variation of that rule must be noted. In R v. K.elly (1988) The Times, 27 July 1995 it was held that once a witness had given evidence for the Crown in a crimingt case, it would always be a rrtatter for the dudgek; discretion whether that witness might be intgtviewed by either side and whether any statement taker! from him might be produced in evidence. 13 . j While the content of {he statement taken from Coilinford Jarvis, is not the concern Of the inquiry, it is worth considering having regard to the station of the maker, the cc rrectness of the grammar and in partieu!at- this sentence: . 1 EGAL AFFAIR 04 /07 03 FAX 268 462. 2465 “After Rage had finished with rne, he carried McKenzie, Bad News and Mohan individuaiiy into the roorn,” [381 Mr Martin’s conduct being imæer shows yegy scant regprg for the judiciaj process of which he is part. This is heavily emphasized by his conduct especially on Wednesday last coupled with the statement made in Chambers earlier that day, It was also neither fair or reasonable. align=”left” hspace=”12″ /> The legal system and in particular the criminal process cannot suice if it is to be, assauåted by conduct of this nature. Il is therefore necessary this type of conduct cease imrnediately. Such conduct may in the appropriate case amount to contempt of court

[40]‘t is ccnglde:ed that The trial has been prejudiced and .hen:e cannot be fair if continued.. Far thig reason it was aborted and the case will be traversed to the nexi And it is very strongly urged that counsel, Mr Martin, out of consideration for the accused consider nat appearing at that trial. It is hoped and also expected that this inquiry’ and the ruling thereon wiÆl serve as warning to at} concerned. Wintling at all cost is not and never will be a constituellt l egal ethics. Likewise justice at cost hes Its legal and constitutionei *imitations, The Public Prosecution is of course empowered to take whatever action, if any, he considered appropriate in the circumstances. 04/ 07 03 1 7 : [431 msohtmlclip1/01/clip_image241.jpg” /> FA.X 462 @ 1 .3 Finally, th ere i s agreement with senior counsel Mr Lovell wnen he said that this episode couid damage the reputation of counsel. The simple answer is that thi s ig of his own making. Errol L Thomas < p align=”left”>

12.M r Martin did not tel} Jarvis what to say. to Jarvis he went t r u Mr Martin’s office to tell hirn c he tru th.

5.The witness was not induced or rewarded for making the statement. [181 it is considered that while the rnatter of a trial should be palt of the wider equation its absence therefrom is not conclusive, The fact which remains is Ihat a judic;al process had started with the cornmittai of the accused in April 2002 and the names of the witnesses endorsed on the Committal For Trial included Cc!linfcrd Jarvis and Vaughan Christian. Fudher still, the same names appeared at the back of the indictment dated and filed on 12 th September, 2002. These are all pad of a continuing jl.tdir$al pncess, A dictum of Lord Diplock in cage of R v. Sang (1979) 2 ALI. ER 1221, 1229 is re!event to the debate. He said tkli3.• the limited fieid in which, for tiistorjcel reasons the functions of a trial judge extend to imposing sanctions for irnprnper conduct on the part of the prosecution before the commencement of the procepdings in inducing the accused by f.hreat$ favour or trickery to provide evidence himself.” By implication the dictum makes tile point quite clearly that the absence of a ti’iai is not a bar to the imposition of sanctions on counsel for improper conduct in (dation to accused persons, this extends to defence counsel And while i .here can be na issue with the concerns of Mr Martin regarding the conduct of the police there is a context in which it can and ntust be addressed,