Judge chides Buchanan over habeas corpus application

The content originally appeared on: Antigua News Room

Jamaica Observer: Supreme Court Judge Justice Andrea Thomas, in rejecting the habeas corpus application brought by Isat Buchanan, attorney for incarcerated artiste Vybz Kartel and two of his three accused, maintained that their present custodial status is not in breach of the constitution. Appearing to chide the lawyer, she told him that such an application cannot be used to “circumvent correct procedure just to facilitate the desire for a more expeditious outcome”.

Buchanan, the lead attorney representing the men, had on May 13 filed the application in the Supreme Court in downtown Kingston seeking to have the judge make an order for the prisoners to be brought before the court for it to determine if they were to be released or granted bail.

The move followed the Privy Council ruling in March quashing the convictions of the men for the 2011 murder of Clive “Lizard” Williams. The Apex Court had, however, ordered the case remitted to Jamaica’s Court of Appeal for it to decide whether a retrial is necessary for Kartel — whose given name is Adidja Palmer — and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John.

Buchanan, in his submissions to the court, argued, among other things, that there was no order by the Privy Council for the continued detention of the men and as such they should be released. The case had received an expedited hearing at the Privy Council on the basis that Kartel has a life-threatening disease.

But Justice Thomas, on Thursday, in a written ruling said she was of the view that, “in the instant case, in the absence of a verdict of acquittal by the Privy Council, the charge of murder against the applicants remains in effect awaiting the decision of the Court of Appeal”.

“Accordingly, it is not correct to say that at this stage the applicants have no charge pending against them. I share the view that the report of the Privy Council does not translate into an order for the release of the applicants. Therefore, as it relates to any changes in the custodial status of the applicants, I agree with the position of counsel for the respondents that… until the superintendent [in charge of the prison] receives an Order of Acquittal for any of the applicants, he is bound by the existing orders of the court. I find that their present custodial status is not in breach of the constitution,” she stated.

“In light of my finding that the charge of murder is still pending… and that the applicants were committed to the custody of the superintendent by the orders of the court, it is my considered opinion that the applicant’s current status is covered by… the Corrections Act. As such, I find that the first respondent has a justifiable reason for the continued detention of the applicants… consequently, I find that in refusing to release the applicants the superintendent is not acting in contravention of the Corrections Act,” she said further.

In addressing the attorney’s arguments that there is no provision in the Judicature (Appellate Jurisdiction) Act, Court of Appeal legislation, which contemplates how a case like the current one should be handled, Justice Thomas said, “On my review of the law regarding the status of the applicants I find that there are in fact provisions governing the status of the applicants and any other defendant in a similar position.”

She said while Section 13 (1) of the 2000 Bail Act provided that a person who was granted bail prior to conviction and who appealed the conviction may apply for bail pending a determination of the appeal; the Bail Act of 2023, which repealed and replaced that Act while making allowance for persons who have been convicted of some criminal offences to be granted bail, contains exceptions regarding the grant of bail for persons who are awaiting the determination of their appeal.

“Additionally, Section 31 of the Judicature (Appellate Jurisdiction) Act provides that an appellant who is not granted bail shall, pending the determination of his appeal, be treated in such manner as directed by the rules under the Corrections Act. Furthermore, the provisions empower the Court of Appeal to grant bail to an appellant pending the determination of his appeal.

“On a proper inspection of the Bail Act of 2023 there is a clear intention of Parliament to create specific categories of persons who have been convicted and are awaiting determination of their appeal to be excluded from being granted bail,” she told the packed courtroom.

Said Justice Thomas, “Under the 2023 Act, not only would the applicants have to be on bail prior to the convictions, but the applicants are also excluded from consideration for bail if convicted for the offence of murder and any of the specified offences in the schedule of the Act.

“In view of the fact that their appeal is not yet determined, Parliament has provided that they should remain in custody until their appeal is concluded, that is until the question as to whether a verdict of acquittal should be entered or an order for retrial is determined by the Court of Appeal,” she said.

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“In essence, I find that there is no lacuna in the law. I pause at this juncture to make the point that whereas an application for a writ of habeas corpus should be made in a proper case, it cannot be used to circumvent the correct procedure just to facilitate the desire for a more expeditious outcome,” the senior judge said.

In pointing out that “the Court of Appeal, in this instance, holds superior jurisdiction”, she said “this court has no jurisdiction to exercise any order… therefore, at this stage, the only competent court that can make any order in relation to this matter is the Court of Appeal”.

“In essence, this is not a proper case for a habeas corpus application. The proper course is for the applicant to continue to pursue their quest for release in the Court of Appeal,” she schooled.

“In conclusion, the convictions of the applicants have been set aside, but no order for an acquittal has been entered. As long as the charge remains, it cannot be said that the superintendent of prisons is acting in contravention. He has not received any order that would form the basis for a release; the application is denied,” Justice Thomas said.

“Grateful, milady…I thank you for schooling me today, might I take my leave, milady?” were the only words uttered by Buchanan following the ruling.

He left the Supreme Court hastily without addressing journalists.

Meanwhile, a highly placed law enforcer welcomed the decision, saying it was a toast to Jamaica’s legislators.

Speaking with the Jamaica Observer on condition of anonymity, the source said the judge’s decision was not surprising. “We knew from the beginning that there was no verdict of acquittal entered in England; the case was just quashed, and there was no verdict of acquittal. The court in Jamaica could not let the men go.

“We knew it could not be done because what has happened, some tweaking has been going on with the lawmakers, due to the state of the country… Nobody has any respect for life anymore so they tried to put some teeth in the law, which is very good, and we do appreciate that. Today is a win-win for the Government, for every family in the country, the journalists, every law-abiding citizen in the country,” he told the Observer.

Meanwhile, two bloggers, one British, who were among the boisterous crowd gathered at the back entrance of the Supreme Court on the misguided notion that the men were inside the building, rued the outcome.

“A worl boss, him fi free now, him do enough time, them don’t have anything on him. Doing so much time and no evidence? Him innocent they need to free worl boss, him do enough time,” one declared.

The two said they are anticipating the ruling of the Appeal Court which is to begin hearing submissions on June 10.

“Acquittal. No retrial,” they said.

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