R v Kowain Findlay
| Jurisdiction | Jamaica |
| Judge | Wint-Blair, J |
| Judgment Date | 18 November 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | FILE NO. GC 00025/19 |
| Date | 18 November 2019 |
[2019] JMSC Crim 4
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE HIGH COURT DIVISION OF THE GUN COURT
FILE NO. GC 00025/19
In the Matter of Regina v Kowain Findlay For Illegal Possession of Firearm and Shooting With Intent
In the Matter of The Evidence Special Measures Act, 2012 and the Evidence Special Measures Rules
In the Matter of an Application For a Prosecution Witness to Give Evidence by Use of a Live Link Direction
Mr. Okeeto DaSilva, Crown Counsel instructed by the Director of Public Prosecutions
Ms. Zara Lewis, instructed by Zara Lewis & Co.
Evidence — Live Link Video — Special measures — Application by prosecution — Whether vulnerable witness — Whether breach of right to a fair trial — Right to confrontation — Right to life — Bench trial — Evidence (Special Measures) Act, 2012, The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, The Constitution of Jamiaca (Order in Council), The Evidence (Special Measures) (Criminal Jurisdiction) (Judicature) (Supreme Court) Rules, 2016
This is an application for special measures filed by the Director of Public Prosecutions on June 19, 2019, for a live link direction (“LLD”) pursuant to the Evidence (Special Measures) Act (“the Act”). The application concerns the main witness, and complainant in the case of R v Kowain Findlay, a matter currently before the High Court Division of the Gun Court. This application was opposed by defence counsel and both sides have helpfully provided written submissions to bolster their positions.
On Friday December 29, 2017 at about 5:50 pm, the complainant was walking on Brown's Lane, Central Village, Spanish Town in the parish of Saint Catherine. The complainant saw three men walking towards her, to include the accused man. All three men pulled guns and fired shots at her. The complainant escaped unharmed. After the incident the complainant informed a police officer she knew about the incident. The complainant was instructed to report the matter to the Central Village Police Station. The complainant did not report the matter as directed and indicated in her statement; “I did not report this to the police at Central Village Station because I am afraid, I don't know which police mi can trust’. The complainant gave a statement to the police dated January 27, 2018 and a further statement dated April 4, 2019.
The respondent has been indicted before this court for the offences of illegal possession of firearm and shooting with intent. The allegations against the respondent have been brought by the complainant in this matter who is the main witness for the prosecution. Throughout this decision, the said witness shall be referred to as S.M.
Both crown and defence acknowledge that the witness S.M. has in a further statement dated April 4, 2019 indicated being approached by “Colourfrass”, a senior member of the “Night time” gang. He made it known to the witness that he knew that she had identified the applicant to the police as her assailant, he went on to threaten to “shoot her in her face” if she gave evidence. As a consequence, the witness has been relocated.
The witness S.M., is 27 years old, and is the complainant and main witness for the prosecution; her evidence is essential to their case. The prosecution's application is grounded in the submission that the evidence of the witness will not be available to the court without the order granting the application as the witness is in fear and as a consequence, has had to leave the jurisdiction. The witness is now in protective custody. The prosecution submitted that the witness has expressed the personal view that as special measures are available, live link would be the preferred medium from which the court should receive her evidence. The prosecution argued that in all the circumstances, the witness S.M. is a vulnerable witness within the meaning of the Act.
Defence counsel opposes the application for the reasons set out below:
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(a) That the Respondent's right to a fair hearing will be affected.
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(b) That the Applicant's witness is not a vulnerable witness within the meaning of the Act.
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(c) That the Applicant is seeking special measures merely for the convenience of the witness without due regard to the administration of justice.
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(d) That the Respondent contends that critical issues to be tested are the credibility and probity of the evidence of the main witness in light of the importance of her evidence to the Applicant's case.
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(e) That it is not in the interest of the administration of justice under the Act for the Applicant's witness to be permitted to give evidence by special measures.
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(f) That the Applicant has failed to establish that its witness is eligible for special measures as the Applicant has failed to adduce sufficient evidence to establish that its witness is eligible for special measures or that the witness was exposed to threat or intimidation as alleged pursuant to section 3 of The Evidence Special Measures Act 2015.
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(g) As a result of not satisfying these conditions the Applicant's witness is not eligible to give evidence by way of video link.
The Legislation
The Evidence (Special Measures) Act
In the Act, the following definitions are provided in section 2:
“criminal proceedings” means criminal proceedings before-
(a) the Gun Court, a Circuit Court or the Court of Appeal;
(b) a Resident Magistrate on indictment or in the exercise of a special statutory summary jurisdiction;
(b) a Family Court or a Children's Court;
(c) any other court designated by the Minister by order, for the purposes of this Act; or
(d) where applicable, a foreign court pursuant to Part V;
“live link” means a technological arrangement whereby a witness, without being physically present in the place where proceedings are held. is able to see and hear and be seen and heard by the following persons present in such place
(a) the judge, Resident Magistrate or Coroner:
(b) the parties to the proceedings:
(c) an attorney-at-law acting for a party to the proceedings:
(d) the jury, if there is one:
(e) an interpreter or any other person permitted by the court to assist the witness: and
(f) any other person having the authority to hear and receive evidence.
“special measure” means the giving of evidence by a witness in proceedings, by means of a live link or video recording, in the manner and circumstances provided for pursuant to the provisions of this Act;
“witness” means in relation to any proceedings, a person who has given, has agreed to give or has been summoned or subpoenaed by the court to give evidence.
Special measures in Part II of the Act are available to vulnerable witnesses, child witnesses and to witnesses who are available to testify but for whom it is not reasonably practicable to attend in person. No direction for special measures can be given unless arrangements can be made to implement the special measure.
Section 2(2) of the Act states:
“For the purposes of Part II, a witness is a vulnerable witness if:
(a) the witness is a child witness at the time that an application or a motion under Part II is being determined by the court;
(b) the witness is a complainant in criminal proceedings relating to a sexual offence; or
(c) the court determines in accordance with subsection (3) that the evidence of the witness is unlikely to be available to the court, or the quality of the evidence if given in court by the witness is likely to be diminished as regards its completeness. coherence or accuracy, by reason of
(i) fear or distress on the part of the witness in connection with testifying in the proceedings; or
(ii) the fact that the witness has a physical disability, physical disorder or suffers from a mental disorder within the meaning of the Mental Health Act.
(3) In determining whether the evidence of the witness is unlikely to be available to the court or the quality of his evidence is likely to be diminished under subsection (2)(c), the court shall consider-.
(a) in the case of criminal proceedings, the nature and circumstances of the offence to which the criminal proceedings relate;
(b) the age of the witness;
(c) any threat of harm made to the witness, a family member of the witness or any other person closely associated with the witness, or to any property of the witness;
(d) any views expressed by or submissions made on behalf of the witness; and
(e) any other matter that the court considers relevant.
The Rules contain the following relevant definitions:
“court” means the Supreme Court of Judicature of Jamaica.
“live link direction” means a direction issued by the court under Part II of the Act that a witness may give evidence by live link.
“Vulnerable witness” has the meaning assigned to it under the Act.
The court will approach the determination of the application for a live link direction by first finding that this is an application which falls within section 2(2)(c) of the Act. Such a finding then involves a consideration of the provisions of section 2(3) in order first to determine: “whether the evidence of the witness is likely to be unavailable to the court, or the quality of the evidence if given in court by the witness is likely to be diminished as regards its completeness, coherence or accuracy, by reason of fear or distress on the part of the witness in connection with his/her testimony.”
The first question will of necessity be, whether the witness, the subject of this application, is a vulnerable witness within the meaning of the Act. The definition of a vulnerable witness in this context would be one who it is concluded will have,...
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