Kartel’s case in bid to free duo accused of stealing $389,000 from bank

Senior Magistrate Colin John is slated to rule Monday (today) on an application by defence lawyers that two people accused of stealing EC$389,000 from Bank of St. Vincent and the Grenadines (BoSVG) should not be retried.

Fitzroy Douglas, a 31-year-old mechanic and Yvonne Patterson, a 50-year-old former clerk at BoSVG, are alleged to have stolen the money from the bank between June and July 23, 2020, in Kingstown.

Their trial was abandoned earlier this year — with just one prosecution witness left to testify – after Bertie Pompey left the magistracy.

Grant Connell, who represents Patterson, and Maxron Holder, holding for Michael Wyllie, Douglas’ lawyer, have argued that the proceedings be stayed indefinitely as an abuse of process.

They made written submissions to the Serious Offences Court and on Tuesday, John asked the lawyer to address him on the test that the court has to satisfy to prove abuse of process and what prevents the accused from having a fair trial, despite the delay.

Connell told the court that he was standing by his submissions.

However, Holder noted that his written submission pointed to four issues that would lead to an unfair trial.

He said the first was delay, adding that it had been four years before the matter came before the court.

“And the reasons given to the prosecution were not proper reasons,” Holder said, adding that this ties into the second issue — whether the accused would be deprived of a fair trial.

Holder noted that in July in the Vybz Kartel case in Jamaica, the court paid attention to the length of the trial, the complexity of the trial and the fact that it had used a lot of the court’s resources.

In March, the UK-based Privy Council quashed the March 13, 2014 murder conviction of Kartel and his co-convicts, who had been sentenced to life in prison.

Then, on July 31, the Jamaica Court of Appeal freed Kartel and his co-accused when it unanimously decided against ordering a retrial for the 2011 murder of Williams.

The President of the Court of Appeal, Justice Marva McDonald Bishop said despite facts of the case showing “barefaced defiance of law and order”, the court had to consider other factors, such as the length of time the men had been in custody and the psychological and health impact on the appellants if a new trial were to be ordered.

Holder pointed out that there are about 21 witnesses in the case against Patterson and Douglas.

“We also have the financial cost and expenses that would affect the accused, the time period spent between the commission of the alleged offence and the likelihood within which a new trial would take place.”

He noted that the Privy Council had mentioned that memory fails.

“The truth of the matter is this: this offence occurred four years ago and I would think it is very detail-oriented. It is something that the witnesses have to come and recount the events that happened four years ago. And truth be told, memory of what actually happened and accurate details of what actually happened would fail.”

Holder said this is why the court has a guideline of six months for the disposal of such matters.

“With emphasis on guidelines, not mandatory –” the senior magistrate interjected and Holder agreed.

Holder said the four-year gap is “really big”, adding, “And it’s an unfortunate situation but in our view, we don’t think that the accused would get a fair trial…”

However, the senior magistrate noted that there are measures in place to have witnesses refresh their memory.

He asked the lawyer what role this would play in a new trial.

Prosecution asking for ‘second chance’

Connell said that the way in which the case operated was that the prosecution was asking for a second chance.

He said that the case went through an entire trial and there was a request for voir dire — a trial within a trial to determine whether to admit something into evidence.

Connell said after the defence requested the voir dire and the prosecution then asked for an adjournment, “without justification”.

However, prosecutor Inspector of Police Renrick Cato said that Connell was on sick leave after asking for a voir dire.

Connell said the defence requested a voir dire and the prosecution could not get their witnesses and they asked for an adjournment.

However, in his submission, Cato told the court that he was not the prosecutor who had started the matter, but he took it over during the trial.

He said that in February 2024, Sergeant Duncan was giving evidence and the prosecution had one witness remaining, who had just witnessed a caution statement being given.

“Counsel Connell requested a voir dire and the voir dire included Sergeant Karla Timm, who at the time was in Barbados. So, the voir dire could not take place at the time.

Cato said that the trial was therefore adjourned and on the date it was supposed to resume, Connell was on sick leave.

The prosecutor said that on the next adjournment date, Pompey’s employment as a magistrate had ended.

Cato said the jurisdiction of the magistrate court to stay proceedings indefinitely as an abuse of process may only be exercised very sparingly and only if it would be a blatant injustice. 

He said that the Privy Council has ruled that when considering a stay, a balance must be struck between the public interest in trying the accused and the competing interest in not undermining public confidence in the criminal justice system and bringing it into public disrepute.

The prosecutor said the offence was not a simple theft, adding that he was not sure whether the court was aware of the amount of money allegedly stolen.

Defence cannot ask for repeated delays then apply for stay — Cato

He said Connell had said on a previous occasion that the court could stay the proceedings despite the cause of the delay.

Cato said that there were over 20 adjournments in the matter and the prosecution had asked for only two of them.

He said the court had received letters from Wyllie saying he would be on sick leave and the time he would need before returning to the trial.

“Then there was the eruption of the volcano and COVID. All of these came into play,” Cato said.

“It is not the prosecution’s fault that Pompey has since left the magistracy,” Cato said.

“It is a serious offence, the penalty still remains two years, but the quantum, it is in the public interest that the defendants be prosecuted,” Cato told the court, adding that he could not think of any reason why a trial would be unfair.

The prosecutor said he remembers responding to a similar submission and he told the court if the reasons for the delay do not matter, a lawyer could write to the court repeatedly until two years pass and then ask that a matter be dismissed because of delay.

“In this matter, the prosecution had asked for three adjournments and the defence for 11,” Cato said.

“If the court rules in this way, all the prosecution has to do is to keep asking for adjournments and then claim abuse of process,” the prosecutor said.

The senior magistrate told the defence that he had not had a satisfactory answer about what would prevent them from having a fair trial.

Holder said the witnesses have gone through cross examination and are now better prepared and the prosecution is now at an advantage in their preparation of their answers.

“That is why I am saying it gives the prosecution a better shot,” the defence counsel said. “It is an unfortunate situation what has happened but we must do better with the justice system in this country.”

However, Connell said he had picked up from “the spirit” that the court was going to give the prosecution a chance to heal all the legal injuries.

John asked what would be the effect of previously disclosed statements.

“If someone concocts a story, they can be cross-examined about it.”

He then said he would give his decision on Monday.

But
Connell said he had gotten the gist of the decision and said the court could just give the trial date then and there.

The magistrate said he would adjourn the matter to Monday and if a trial will take place, it would be Oct. 21 and 22.