By C. ben-David
A country’s constitution is a document that applies equally to all affected people, citizens and visitors alike. It is also a document that has to be carefully and thoughtfully interpreted for what it says and does not say.
My interpretation of Sections 3 and 8 of the St. Vincent and the Grenadines Constitution is that it would be an egregious breach of this British-derived document for a prosecutor and/or judge who are privy to relevant evidence, whether condemnatory or exculpatory, in a criminal matter but deliberately withholds such evidence from the defendant and her legal counsel. This is because such evidence could prejudice the outcome of the proceedings based on a free and fair hearing in an open court of law.
According to Section 3.1.8 of our 1979 Constitution which deals with the “protection of right to personal liberty”:
“No person shall be deprived of his [or her] personal liberty save as may be authorised by law … in the case of a person who is, or is reasonably suspected to be, of unsound mind … for the purpose of his [or her] care or treatment or the protection of the community.”
Judging from all the news reports covering this story, there was not a shred of evidence presented by the prosecution to the court in the abusive language criminal trial of Yugge Farrell, who has alleged that Camillo Gonsalves had been her sugar daddy, that she was in any way of “unsound mind,” let alone needing “care or treatment or the protection of the community” because she was a threat to one or more members of the public.
More particularly, in our system of legal proof based on the English common law tradition, almost all evidence must be supported by a witness who has sworn or solemnly affirmed to tell the truth in an open court. The bulk of our law of evidence regulates the types of evidence that may be sought from witnesses and the manner in which the interrogation of witnesses is conducted such as during the direct examination and cross-examination of witnesses in open court.
What this also means is that no evidence should be given to a judge or jury which could be used to confine or convict any person that is not available for rebuttal by the defendant and her legal counsel.
In St. Vincent and the Grenadines, nearly all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. However, legal rules sometimes exempt people from the obligation to give evidence and legal rules disqualify people from serving as witnesses under some circumstances.
“Privilege rules” give the holder of the privilege a right to prevent them from giving testimony. These privileges are ordinarily designed to protect socially valued types of confidential communications. Some of the privileges that are often recognised in various jurisdictions are spousal privilege, attorney–client privilege, doctor–patient privilege, state secrets privilege, and clergy–penitent privilege.
Also, what are called “witness competence rules” are legal regulations that specify circumstances under which persons are not eligible to serve as witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which the judge or the juror serves in that capacity. In the Yugge Farrell case, it seems that the presiding jurist, Magistrate Bertie Pompey, was privy to potentially incriminating information about the defendant that was not shared with her lawyer (https://www.iwnsvg.com/2018/01/11/magistrate-can-consider-info-not-disclosed-in-open-court-pm/ ). If true, Magistrate Pompey may have been acting unconstitutionally as a silent but omnipotent witness against Ms Farrell resulting in her two-week involuntary incarceration in a mental facility with no resident psychiatrist.
Also, according to Section 8.2.e of the Constitution, “Provisions to secure protection of law”:
“Every person who is charged with a criminal offence … shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and … except with his own consent the trial shall not take place in his absence unless he so conducts himself as to tender the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.”
As applied to the Yugge Farrell case, the probable hidden and silent witnesses — the police, the prosecution, and the magistrate — were not made available for questioning by her lawyer prior to her incarceration, a period of confinement that many commentators have interpreted as punishment for going public with her private affairs. Equally important, this also looks like physical removal from her own legal defence.
Also relevant are the motives for all this secrecy. According to the Prime Minister, the Honourable Dr. Ralph E. Gonsalves, this was, “because you have to be concerned most of all about the patient, the person [Ms. Farrell], and you don’t want, in any way, to prejudice their health or circumstances.”
Other commentators have opined that the person whose political health and social circumstances are paramount in this saga are those of his son and heir apparent, Camillo Gonsalves, whose deafening silence is said to speak volumes.
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected]
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].