By Elesha George
A passport scam trial involving a police officer and a passport office worker has been adjourned to February 13 when High Court Judge Justice Tunde Bakre will rule on whether to admit the statements of key witnesses as evidence in the case.
Lonzel Jones and Geraldo James have declined to testify in the trial while another potential witness, Ezra Lampkin-Cruikshank, cannot be located by Vincentian police.
By default, the Acting Director of Public Prosecutions (DPP) Shannon Jones-Gittens has put forward an application to have their unsworn statements submitted and read into evidence.
The case is about an alleged conspiracy to forge Antigua and Barbuda passport bio pages by suspended Superintendent of Police Ray John and former passport office worker Shakeema Charles who are suspected of working with other people in St Vincent.
Jones is accused of printing the contents on the pages while James, John’s nephew, was caught in possession of the passport bio pages in April 2018 at the Argyle International Airport in St Vincent.
According to Antigua and Barbuda police officers Sergeant C Quow and retired Assistant Commissioner of Police C Davis, who were both recalled to the stand on Monday morning, Jones had been unwilling to testify on various occasions.
In giving their account, the men said Jones had been shot previously and believes it was because of their current investigation. Shortly after John and Charles were arrested, Jones was shot in both hands. He reportedly told officer Davis that during that time he received no support from Vincentian police whom he “does not trust”.
He told the officer he is “fearful for his life” based on information he received, has “post-traumatic stress”, cannot sleep, and has had to undergo therapy and counselling since the incident.
Officer Quow admitted that their investigation into Jones’ shooting was “unsuccessful” as the Criminal Investigations Department in St Vincent made no arrests following its investigation.
John’s nephew reportedly told the officers that he needed to consult with his lawyer who had advised him against testifying. However, when the officers visited the lawyer, he claimed he was not retained by James or Lampkin-Cruikshank, who had previously named him as an attorney, and had never given such instruction.
The statements currently being contested are important and significant pieces of evidence against Hugh Marshall’s and Michael Archibald’s clients who are accused of forging the passport bio pages. Both lawyers therefore objected to the statements being tendered.
Marshall, who led the objection, centred his disagreement on two main factors: (1) The Evidence Special Provisions Act 2009 being used is in conflict with the state’s Constitution that speaks to witness rights and the accused’s rights to a fair hearing, and (2) that the prosecution had not met the threshold to submit the statements.
“Section 15(e) of the Constitution states that 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.”
By the merits of the Constitution, Marshall contended that the witnesses must be present whether physically or by virtual means to be cross examined. Anything short of that he noted is “not a fair trial”, particularly as the defence never had an opportunity to examine those unsworn statements which the prosecution is attempting to use as “true statements of the facts”.
“The only evidence against the accused, John, would be these statements,” he insisted, while referencing several cases to support his argument. However, to advance his argument to challenge the constitutional conflict, Marshall would have to introduce a constitutional motion.
Still, he has another defence to rely upon — why he thought the prosecution has not met the criteria to submit those statements into evidence. Marshall explained that the prosecution had not used all reasonable and practical means to secure the witnesses as outlined in the Criminal Procedure Act.
These efforts would include subpoenaing the witnesses, applying for arrest warrants or conducting a deposition to format better case evaluation.
“There is no evidence that the prosecution at any time even sought to summon the witnesses,” he told the court.
Neither Jones, who allegedly facilitated the printing, nor James who was caught in possession of the bio pages have been charged in connection with the investigation. Therefore, Marshall concluded that it was “absurd” and “unsafe” for Jones, a co-conspirator who himself is not charged, to refuse to be present to give evidence.
In rebuttal, Acting DPP Jones-Gittens felt that the prosecution did what was within its powers to get the men to testify, but said that “the court’s jurisdiction does not extend past the jurisdiction of Antigua and Barbuda”.
In that case, she recommended the judge look at the quality of the evidence presented so far in order to determine its next step. If the judge does decide to have the evidence tendered, she noted that it would still have to consider how to treat the evidence, ie whether to throw it out as inadmissible or have it retained and form part of the trial.
Since the next witness for the prosecution, a Barbadian police officer, will not be available until next Tuesday, the continuation of the trial has been set for then.
Bakre’s decision, according to Marshall should lead to a dismissal of the indictment against John or a stay of the proceedings (temporary suspension of the proceedings).
