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Lawyers for state entities involved in the ongoing court battle to determine whether artist Vybz Kartel and two of his three co-accused were illegally detained strongly argued on Wednesday that the Privy Council’s reversal of convictions in March did not amount to acquittal but merely reverted the men to pre-trial status, with murder charges still “active.”
The Privy Council quashed the conviction for the 2011 murder of Clive “Lizard” Williams and ordered the case sent back to Jamaica’s Court of Appeal to decide whether a retrial is necessary for Vybz Kartel, whose real name is Adidja Palmer, and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones and Andre St John.
On May 13, lawyers representing Vybz Kartel, Campbell and St John filed a habeas corpus petition in the Supreme Court in downtown Kingston seeking their release, arguing that the Supreme Court had not ordered the continued detention of their clients and therefore they should be released.
The writ essentially asks a judge to order the prisoner to be brought to court, which will decide whether he should be released or set bail. Jones reportedly faces another charge, but he was not included in the application.
Appearing for Supreme Court Justice Andrea Thomas on behalf of the Attorney General’s Office, lawyer Lisa White said: “We do not believe the Privy Council’s decision means the applicant will be released. It is clear from the decision that the conviction has been quashed, but they did not make an order as to whether the defendant and his co-accused should be released. It is clear to me that the matter has been left to the Court of Appeal.”
White, who called the habeas corpus application “premature,” said: “It is lawful for them to remain in jail until the Court of Appeal decides the case. The charges remain in place. They are still charged with murder, and although the conviction has been vacated, the prosecution is still ongoing.”
“The quashing of their convictions means that the existing charges may be presented to a judge and jury at a new trial. Obviously, given that the charge of murder remains, the applicants will not be re-arrested or charged. The Privy Council did not acquit the applicants, they indicated that the convictions were unsafe,” White continued.
As for the applicant’s status, counsel told the court, “It is clear that the information in the 2011 affidavit is still valid and has not been expunged from the court record, when the applicant would have been detained on suspicion of murder…Yes, we know there was a trial, yes, we know there were two appeals, but the fact is that the information in the original document is still valid. The applicant has not provided any information or any other evidence to justify a release,” White added.
Citing Section 18 of the Corrections Act, which gives the prison governor the power to detain and appropriately incarcerate all individuals, White said: “It is clear that the prison governor detains prisoners on judicial orders or until such persons are released in accordance with the provisions of the law. They will remain in custody until the prosecution process is completed.”
Deputy Director of Public Prosecutions Paula-Sue Ferguson stressed in court: “The Privy Council did not refer a verdict of acquittal. They remitted a verdict of acquittal to the Court of Appeal. That means the applicants are still appellants. The Court of Appeal has to make a decision of acquittal or retrial. Habeas corpus is not an appropriate application at this time. They are still appellants and they are still detained on a lawful charge.”
Vybz Kartel’s lawyer Isat Buchanan argued in a strongly worded brief that “there must be a conviction to have the right to detain these people”.
“They are not being detained on conviction at present. The Privy Council order is very clear, it actually quashed the conviction and did not direct the court to quash the conviction. The Supreme Court, while doing so, was very specific while giving its order. The question for this court is to indicate under what power these people will be detained,” he questioned.
Mr Buchanan said there was no provision in the Court of Appeal’s Jurisdiction (Appellate Jurisdiction) Act that governed how cases like this one should be dealt with.
“The applicants’ position is that when their convictions were quashed, their custody status did not revert to pre-trial detention. The law in Jamaica is silent on the issue before the court at this moment. We object to any fabrication or academic concoction that would fill that gap to say that they can temporarily suspend the trial in the meantime,” the lawyers declared.
Buchanan added: “If the court finds that there is a gap in the law, then the problem it faces is to fix the gap in the law. The judgment no longer exists, the conviction is void. It is also clear that the effect of the Privy Council Order is that they are placed under the protection of the presumption of innocence. Equally, they are no longer even considered criminals.
Buchanan added: “We believe that the detainer, as part of the executive, can only act in accordance with the legal powers conferred upon him by English jurisprudence, Jamaican legislation and the constitution applicable to this case.”
Buchanan declared that “no executive officer may interfere with the liberty or property of a Jamaican citizen unless he can prove the legality of his action in a court of law”. He pointed out that “it is a reflection of Jamaican judicial tradition, Commonwealth jurisprudence, traditional English jurisprudence and justice that judges should not shy away from deciding such issues when an executive officer cannot clearly state his authority to detain or deprive an applicant of his liberty.”
Judge Thomas will render his ruling this afternoon at 2:00 p.m.
(Jamaica Observer)
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