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 opinions presented in this content belong to the author and may not necessarily reflect the perspectives or editorial stance of iWitness News. Opinion pieces can be submitted to [email protected].
When a statute is created it has to be tested against the constitution, for year in st Vincent, a person who is known to have been previously diagnosed with a mental illness and is observed displaying a behaviour that is likely to cause a breach of the peace, the laws of st Vincent made provisions for a police officer to take this person to the metal institution. The problem arise from poor reporting, there is no mention that that person was known to have a mental illness, that she was once a patients at the mental institution, that what she was diagnosed with is likely to caused her to create in her mind the said allegations that she was making against a person in a high position. The first article that came out on the story fall short of the mark, the journalist in his quest to get the story out there has fallen to do these basic checks and have mislead many persons. The journalists have great protential but must do more to fact check his information before putting it in the public domain. Had he done this in a first world country may have found himself in trouble.
The journalist faithfully and accurately reported on what took place in court. Why should this story have been handled differently than any other court story in which journalists faithfully and accurately report on the proceedings, period?
Rohan, why fact check when commess and sensitization sells?
One of the doctors in this matter, was constantly on this blog imploring the editor to fact check but alas, it was all in vain. Facts dont sell!!
A Vincy Lawyer, you were one of those once Ralph, whatever you write is easily recognisable.
Obviously written by Ralph or a mouth piece of his. There was no poor reporting on the part of the journalist and the medical records of a person should never be made public as is the disgusting and illegal actions by Gonsalves at every opportunity when trying to discredit someone.
The problem never arose from poor reporting it arose from the actions of a father and son in trying to bury the truth and it back firing on them.
my comment above is in reply to Rohan’s comments.
Rohan your comment is obviously an attempt to take our eye from dynasty and try and place the blame on the reporter and victim, shame on you Ralph.
How so, Peter Binose?
This article needed to be written. Sadly it shows how our courts have such disrespect for our constitution and instead of protecting our rights they protect designated elites. This seems to be a trend in many nations. In the USA Hillary Clinton has broken so many laws that she should be spending several lifetimes in prison. Conversely, as distasteful as Trump may be, there is no evidence that he has done anything that he is being accused of, yet they are going after him with a vengeance and they ignore all the Clinton crimes.
C-Ben David, the right to appeal is also deeply enshrined in our laws. If everyone is so up in arms about the magistrate’s initial ruling, WHY WASN’T HIS ORDER APPEALED?
I guess, your guess is as good as mine!!!!
It’s not quite as simple as you make out, you have to get leave to appeal and it also takes time which in this particular case would take forever. In the mean time because this was deemed an urgent medical matter there would be no stay pending an appeal.
Leave it to the experts David you obviously have no personal knowledge on the matter whatsoever. Even the story is what you have stripped from elsewhere and pieced together like a quilt.
That is no a moot point since she has been released.
Oh my Rohan, how Gonsalves hates journalists because they simply do not only speak the truth they publish it as well, and he simply hates that. They also get to ask him questions and he hates that even more because he has an affliction whereby he cannot give a straight answer to any question. But worse than that journalists must keep in mind the Gonsalves is a self confessed liar, so a lot of double checking on his statements must take place. Then because of his hate of journalists he is just downright ornery to them and does his best to belittle them.
He attacked another fine young man, remember this?
https://www.iwnsvg.com/2013/08/04/pm-rants-after-journalist-asks-question-about-senators-arrest/
Did anyone bother to read this https://www.iwnsvg.com/2013/08/04/pm-rants-after-journalist-asks-question-about-senators-arrest/
Ralph Gonsalves told Kenville Horne the young journalist that if he changes professions no one would remember him.
I am not sure anyone has followed Kenvilles achievments since then.
Kenville Horne from St Vincent and the Grenadines received a young leadership award from Her Majesty The Queen in June 2015. He was recognised as an exceptional leader in the SVG community for which he received the Queens Young Leaders Award.
The Award, was presented in London by Her Majesty The Queen, and is part of The Queens Young Leaders Programme, celebrates the achievements of young people who are taking the lead to transform the lives of others and make a lasting difference in their communities.
Kenville was described as a young father who turned his back on a life of gangs. After completing his education, he started a sports programme for disadvantaged children. He helps them to reach their potential and raises awareness of the danger of drugs. More Information about his life changing programme can be found at https://www.facebook.com/pages/Kenville-Horne-Sports-Academy-KHSA/224948594355054?fref=ts
Just goes to show what an appalling judge of character Gonsalves is and how his nasty spiteful comments failed to destroy this young mans future.
I am sure he would bury all journalists if he could, thank goodness we have people like Kenton who stands none of his nonsense.
It is not only poor reporting but misleading reporting . For those of you who think it was accurate reporting , was it the whole charge he published ?
Kenton Chance reported what was before the court, the proceedings, findings and orders made. Most of what is now known was kept secret by the prosecution, judiciary and the Consalves/Francis clan and dynasty. Some of the details only became known after Ralph Gonsalves lost his cool in a press conference and blurted out a whole lot of things that until then been kept secret.
In that meeting which was reported locally and regionally, then going viral internationally. Gonsalves made comments about the girls medical records which should never have been done by him.
Nice photo caption. Very telling.