Get your house in order – High Court Judge

Murder convicts Che Bute and Azari Ash will have to wait a while longer to have their appeals heard, as a tribunal, on May 28, instructed lawyers for the appellants to get their houses in order before the next practical sitting of Eastern Caribbean Court of Appeal.{{more}}

At the High Court in Kingstown, attorney for Bute, Jomo Thomas, sought to introduce hearsay evidence, but according to appeal court judges Davidson Baptiste, Don Mitchell and Louise Blenman, Thomas had not gone through the proper procedure and had not made any application to seek leave to do so.

Ash, represented by Carlyle Dougan QC and Bute, are appealing their 2011 conviction for the December 21, 2007 murder of Lloyd “Lazo” Samuel of Redemption Sharpes, at about 1:15 a.m.

Both men were sentenced to life imprisonment.

At the last sitting of the Court of Appeal, Director of Public Prosecutions Colin Williams made it clear that he would resist any application by the men’s attorneys to have fresh evidence introduced.

The men’s counsel were at the time seeking to have sworn affidavits of now deceased, star witness for the crown, Uroy “Laybay” Robinson and Maurice “Gamoon” Clifton used at the appeal hearing.

On May 7, 2012, Robinson had signed a sworn affidavit recanting the testimony given at trial. He stated that he had lied under oath because the police had promised to issue him with a passport and send him abroad if he testified against both men.

Robinson was, however, gunned down in Walvaroo on September 2, 2012.

The appeal court judges, at the last sitting of the Court of Appeal, ordered that Clifton, who swore to the affidavit in October 2011, two months after the men’s conviction, would have to be present in court at the appeal hearing.

In his affidavit, Clifton denied being in the same house at Redemption Sharpes when the plot was made by Bute and Ash to have Samuel killed, as had been testified by Robinson.

On Tuesday, Thomas said he had filed an application on May 22, 2013, with notice to put in hearsay evidence. He noted that they were looking for “ways in our laws” to deal with the issues of the men’s affidavits, since one of them is deceased and the other cannot come to court.

Appeal judge Baptiste asked Thomas if he had made any application to seek leave to put in hearsay evidence, to which Thomas replied in the negative.

When asked about the hearsay evidence application, DPP Colin Williams told the court that he had received notice of the application over the weekend.

“It was mentioned to me that an application was coming. They did send something by email, but I was unable to get it open in its entirety because of several attachments and I could only get one opened,” the DPP explained.

According to Baptiste, criminal appeal matters are dealt with before the sitting of the Court of Appeal by way of case management, which in relation to this appeal, was held on May 17, 2013.

“This is to ensure that no one is caught by surprise. This is to make sure that when the court comes to a jurisdiction, they will already have sorted out directions, whether it be extensions to file anything or directions previously given can be varied.

“… At the time, you, Dougan and Colin John (Assistant DPP) advised the court that you were ready to proceed; these were the directions the chief registrar gave me… That is what is on the record. I’m curious as to why you would file anything after, without leave,” the judge questioned.

Carlyle Dougan QC, who was also absent from the hearing, told the court he had relayed correspondence to the court that he would be absent.

Thomas said it had been the intention of his office to explain to the court the course they intended to take at the case management hearing; however, his chambers were not aware that the time for case management on May 17 had been brought forward from 2 p.m. to 12:30 p.m.

Thomas then attempted to take the judges through the Criminal Procedure Act, Section 143, which he said indicated that the only way the hearsay evidence could get in, is through a deposition.

Before Thomas could get any further in reading through the legislation, he was stopped and asked for copies of what he was quoting from, but they had not been filed before the appeal court judges.

“Have you sought to give us copies of these Acts so we could look at it?” questioned the judges.

Thomas replied “This should have been filed, but for whatever reason, it wasn’t.”

“This is not the way it is done! The court is not able to follow, because we do not have such Acts with us. You have to be prepared for your appeal… You have to prepare the matter properly to advance your case,” Justice Mitchell beseeched.

Justice Louise Blenman told Thomas what he was doing was “unacceptable”.

“… We are unable to proceed at this time in these circumstances. We’ll allow you to some time to put yourself in order to have all cases and legislation of which you refer, placed before.”

Blenman added that in any other jurisdiction, the court would not have even allowed Thomas to commence.

“They would say to you, this is unacceptable and indicate upfront that this matter be adjourned to the next sitting because it’s obvious the appellants are not ready.”

Thomas then requested leave of the court to file the application and have the matter traversed.

The DPP, in response, said he had no problem with the request and stated that he wants the appellants to have as much opportunity as they can to get their house in order.

Willliams said Thomas had argued that he (DPP) had not filed any skeleton arguments that he would resist fresh evidence. Williams said “Maybe, tactically, I would welcome the fresh evidence…”

As a result, the court allowed leave to the appellants to file any application on hearsay evidence that is supported by any affidavit evidence and that submission in writing served on the Crown on or before June 25.

The DPP would file his response by July 23.

The matter was adjourned to September 30, the next sitting of the Court of Appeal.(KW)