June 8, 2017

It’s been a while that I have not written and I went without saying a word, but I hope my apology is accepted and I am forgiven for making the ink in my pen run dry and for keeping my thoughts to myself… but sometimes it is best not to put to paper that which you know and to just step back and mull over it and let it all pass by like a film reel playing out before your eyes. I must apologize for the abrupt departure… but hey! I am back!

While I do not say much about my private life, I will share just a bit, in telling my readers I had gotten very ill after a doctor did a procedure that went really wrong and could have cost me my life. I will write about that and expose it all with time, since I think too many cases of malpractice go on in this country and doctors take it for granted that our options are limited and our legal recourse too inaccessible for many, who could barely afford their medication much less a lawyer. But I am a lawyer and I know better!

Of law and lawyers
As I became depressed and trying to cope with not being fully functional and mobile during my illness, I had time to reflect on many things and one of them is the very profession in which I now practice. I felt I had become overwhelmed in my profession because I wanted to do more than I could do to help others and extended myself to represent clients because I saw their need. And then I sometimes reached out to other lawyers with the hope that they would see that cause and was disappointed that they do not care… law is a business… lawyers are to use their skills to make money and most do. The same way the shopkeeper will not hand over his wares until you present payment at the counter, lawyers will not work for free. So I now accept that lawyers are not missionaries out to save the world… they are business people, mostly out to get rich! I know some do a little charity here and there, but that is still not enough to deal with the demand and need of the poor for access to the courts. But each must work according to their conscience as I must work according to mine.

In the court system because the law mandates that if a person charged with murder is unable to get an attorney on their own the state will provide one, the onus is on the state to ensure that said person is legally represented at his/her trial. However, this provision is only for those charged with murder. In case the general public did not know it, let me explain it: anyone charged with murder, which is what we call a capital crime because it can result in a sentence of death by hanging (technically) or life imprisonment, said accused cannot have their trial without representation by an attorney. However, for many more offences no state-appointed attorney is available and so the injustices that occur are even more astounding… especially, when the bias or disgust of the magistrate is blatant. Too often the accused are not able to pay for legal representation. The Legal Aid Centre, although it has extended its cadre of attorneys, it still cannot cover so many more in need of legal representation. To some extent the access to justice in this country is a farce… because I have been from Magistrate’s Court to Supreme Court and seen the unrepresented unable to even understand the process, much less help themselves in their own defense… they cannot even cross-examine witnesses and most can’t even speak properly to express what they want to say… many are only comfortable speaking Creole or Spanish… thus it is clear to the poor man that our so-called access to justice is a farce! I cringe at seeing how poor unrepresented people are dealt with in our court system, but I must remind myself that we collectively as a people get the governments, leaders, systems and justice we deserve, because we criticize, but we do not act even when we are the ones who feel it most.

The Pakeman fiasco
That farce is even more blatant when the rich, politically-connected, or socially established are taken before the court because the treatment is glaringly different from that given to the poor. And the different outcomes are like night and day! A most elucidating example can be seen from the Dorian Pakeman case, which needs to be explained from the legal aspect so that the misguided, twisted reports in the news can be cleared up.

First and foremost, it needs to be known that legally and constitutionally only the person who holds the office of Director of Public Prosecutions (DPP) has the power and authority to withdraw and stop a prosecution or, as we famously know, enter a nolle prosequi. Thus even if the accused pays off or compensates the wife of Mr. Dean Dawson, that does not mean the case must come to an end and that should not factor into the deliberation of a magistrate looking to determine if there is a prima facie case on paper before her. The families of victims of traffic accidents need to know that they are lawfully entitled to seek compensation through a civil suit for the death of their loved one and that has nothing to do with the duty of the DPP to prosecute the person who caused such death. If you take compensation in return for not testifying, then that is an obstruction of justice in my view, and if you knew better you would know that there is a formula to calculate the amount of money that said loss of life would value… not that we can ever put a monetary value to one’s life. Sorry, but in my humble opinion $45K for a young, healthy, skilled mechanic does not consider the financial loss his family has suffered.

Thus, looking in as a legal mind at this situation, it seems that the common-law wife of Mr. Dawson, if she did receive said money, is mistaken about her power to seek withdrawal of the case as she does not have any power that trumps that of the DPP. Plus, she is entitled to seek compensation either by way of pursuing a civil claim against Dorian Pakeman or by reaching an out-of-court settlement. However, this settlement cannot be lawfully contingent on her seeking to bring an end to the criminal charges, and thus I dispute media reports that are suggestive of this until I see otherwise. If withdrawal of charges is set as a condition, then Mr. Pakeman would have breached his condition for bail, which is always not to interfere with witnesses for the prosecution! What is even more frightening is that the news reports state that the common-law wife signed a non-disclosure agreement through the Solicitor General’s office. The frightening thing about this is that the Solicitor General is the attorney for the government, and I cannot imagine them urging her to press for the charges to be withdrawn… that would be illegal and unethical on all fronts… thus I do not know why the non-disclosure clause if it’s taxpayers’ money that seems to be paying this compensation!

This case is troubling, because unlike in the past where magistrates were not trained attorneys, this case was heard by Senior Magistrate Sharon Fraser, a veteran on the bench whose almost entire legal career has been as a magistrate. This is important since magistrates are creatures of statute and as such receive their powers from statute and thus must act in accordance with the provisions laid out in said statute. In this case, the manner in which the Preliminary Inquiry (PI) had to be dealt with, had to be in conformity with the law and nothing else.

The law governing PI’s
Said law can be found at Sections 32 to 44 of the Indictable Procedure Act, Chapter 96. Based on Section 33 the magistrate can carry out a paper committal

“Without consideration of the contents of those statements unless the accused or one of the accused, as the case may be has requested the court to consider a submission that the statements disclose insufficient evidence to put the accused on trial for the offence or offences.” [Emphasis mine]

However, the matter does not end there because that section needs to be read and complied with in accordance with Rule 8.11 (i) of the Criminal Procedure Rules 2016 which state:

“The defence shall notify the Prosecution if the Preliminary Inquiry is to be contested at least 7 days before it is due to be heard.” [Emphasis mine]

Now these two sections are extremely relevant for several reasons, but before I list those, I must first mention that when the first ever Criminal Procedure Rules were enacted last year, not only were they enacted after consultations with judges, magistrates, attorneys and other stakeholders, but the Chief Justice ensured that there was extensive training of those on the bench and those appearing before the bench. Thus prosecutors and magistrates alike were trained and updated in this new law which complemented the Indictable Procedure Act. Thus the seven-day notice rule I presumed was known by the prosecutor, who should have objected to the ambush, but if not known, the magistrate ought to have known it and demanded the defence comply with it, as she is the one in charge of her court!

Now to the relevance of compliance with these two provisions:

1. It ensures that the accused has as a say from the preliminary stage about the sufficiency or insufficiency of the evidence;

2. It makes sure that the magistrate and the prosecution are not ambushed by the defence by some last minute submission that neither is prepared to hear and the prosecution is surely not prepared to rebut;

3. It sets a precise time of notice for seven (7) days so as to alert the prosecution to come ready to respond, but also the magistrate to manage his/her time for that hearing;

4. The defence, however, is not precluded from giving notice beyond seven (7) days;

5. These provisions prevent abuse of the justice system and seek to ensure that justice appears to be done for all involved.

I would go as far as saying that in highly sensitive cases like these, the magistrate would usually ask for those submissions by the defence to be made in writing and for the prosecution’s rebuttal also to be writing so that when he/she deliberates on the issue and delivers his/her finding, the record can clearly show the reasoning that went into it. But these days the sessions are recorded in court and I would like to get a hold of a transcript of this hearing to hear for myself on what legal basis and authority the magistrate dispensed with compliance of the rule of law that the seven days’ notice was not needed and what was the legal reasoning that found that there was not a case on the face of the evidence to answer.

Now, I must explain for the lay persons that at the PI stage, the magistrate having ruled that there is a case to answer and that the matter must be committed for trial at the Supreme Court, DOES NOT mean that the person is guilty. The strength of that evidence will be tested at trial of the matter.

The solution
All is not lost however in this case, because the office of the DPP being a constitutionally established post, has much more powers to prosecute than many can appreciate. The Magistrate’s decision to discharge Mr. Pakeman at the level of the PI does not mean that charges cannot be brought back against him and that the DPP cannot re-open this investigation.
It is a horrendous precedent for any court of law to allow the usurpation of the power of the DPP to prosecute on the basis that a purported wife or relative or a bona fide wife or relative of a victim does not wish to give evidence. Even more injurious is when the reason given is that said relative has received money… to me legally speaking that would be more reason to delve into said inquiry with much more caution!

The public outrage at a politically-connected UDP spokesman and driver who knocked down a road user is justified, but I would want the same outcry regardless of who is the victim or the accused, otherwise we selectively embrace or reject lawlessness. The optics of the scenario give the appearance of lawlessness and as such I am confident that we have the right person in the right offices with sufficient integrity to go back to the drawing table and properly investigate Mr. Pakeman, as his charges do not a carry a time limitation. Likewise the pay-out to a relative needs to be looked at. Those seeking to protect the financial interests of his children need to get legal advice on a civil suit against the driver who caused his death so as to obtain fair and proper compensation… but ignorance of the law can easily be used against the ignorant!

We must do this right, since our justice system should inspire confidence and our Lady Justice must remain blind, in keeping with the maxim “justice is blind”… but in this one it seems that Lady Justice has removed her blindfold!