The Court of Appeal ended its June session today, and as it does at the end of sitting, which lasts for 2 weeks, the court handed down pending judgments. The Court handed down a trio of very important judgments, and we start first tonight with the criminal appeal of Gilbert Henry.
Now, we've gotten in touch with the attorneys involved in the case, even after it's conclusion, there is deep disagreement on what the outcome is and should be. On one hand, there is Henry and his attorney, Kevin Arthurs, who says that he was arbitrarily deprived of his freedom having served 5 years in prison, only to learn after the fact that his conviction and time spent in jail should not have happened.
The court has ruled that his conviction is a nullity, meaning that it is invalid.
On the other, there is DPP Cheryl-Lynn Vidal who completely disagrees with the ruling. Additionally, she says that she was surprised to find out that the court allowed the appeal in their written decision, after having indicated orally a few months ago that it was dismissed.
We'll get to those, but first to the incident itself. Gilbert Henry was convicted in July 2012 of dangerous harm. He was accused of stabbing Ellis Taibo in a bar on September 14, 2008. Taibo and Henry had some hard talk with each other, which escalated into a fist fight. Henry followed Taibo outside, and stabbed him in the chest. That sent him to the hospital for 6 weeks, due to the collapsed lung, and when Henry was tried in 2012, he had no attorney to represent him.
A jury found him guilty of dangerous harm, instead of attempted murder. He was sentenced to 5 years in jail. A few days later, he filed for appeal. And most unusually, the court lost the record of his trial. So, he spent the entire jail sentence, awaiting the appeal, which the Court of Appeal finally decided to hear in March of this year. The court handed down its decision, allowing his appeal, finding that the original trial is invalid. Judges were highly critical of the justice system that they are a part of. The judgment says, quote, "...There have been significant administrative and judicial irregularities and disorganization… such a situation, as occurred in this case, is never acceptable..." End quote.
The court ruled that Henry's constitutional rights to a fair trial in a reasonable time was violated. This evening, evening, his attorney granted us a sit-down interview to discuss the implications.
Kevin Arthurs - Attorney for Gilbert Henry
"What is interesting as I said is that the court could have ruled on a very technical ground and that would have been sufficient but in the judgement, what they did was to comment on a systematic failure and the tone of it in my opinion is very condemning and I think that this judgement the judges step out of what they normally do, their comfort zones and their conventional ways of disposing with matters to be very strong in their language to say this is unacceptable and to send word in my belief of 2 things: we do not want this to happen again and fix the administrative inefficiencies and failures. It is such a fundamentality, important part of any democracy, that you are allowed to know that even if every other section of the society fails, it's not important that the people at the lands department fail, it's not important that the people at immigration fail, it's not even important that the people who are making legislation so much fail, the most important safeguard to the failures of everyone else is the judiciary. That is where you know that, I don't care what you do, when the judge come, when the referee come, I would get a fair shake at this and so with this judgement to me is a shot across the bow from the panel from the court of appeal to say go fix these things, people are depending on you."
Reporter
"You as a defence attorney practicing criminal law often hear defendants say I am wrongfully accused, wrongfully convicted, this is the first case where it was determined that this was a wrongfully conviction, would you agree?"
Kevin Arthurs - Attorney for Gilbert Henry
"Yes, I have heard that regularly, but there's a certain measuring stick. Guilt and innocence in our society is not something which is predicated untruth but is predicated on evidence. What's the difference? I don't want to sound like a politician because that is the last thing that is going to be helpful, but the court process is systematic. You have a system, if you have a standard that you meet then you are guilty even though you are in truth and in reality you committed the offense. Systematically if you don't cross that standard then you are innocent, you are not guilty. That comes from a democratic principal that its better for 99 guilty men to walk free that for 1 innocent person to go to jail. I subscribe to that."
Reporter
"In this case this one guilty person, one innocent person went to jail and served his time."
Kevin Arthurs - Attorney for Gilbert Henry
"That is one way to look at it. I think that the most optimistic way to look at this, the most neutral way to look at this is that there has been an exposure to a fundamental failure in the system, the trial has been declared a nullity and the court said that even if it had not declared a nullity, it would be constrained to quash the conviction and not a re-trial. On numerous occasions Mr. Henry was asked you already came out of jail why are you still doing this? He said it's the principle. And to answer your question directly in terms of what can he do next? Numerous times during the proceedings we were asked by the panel, why don't you take up a constitutional challenge and in doing so then there could be a financial compensation to him. Mr. Henry wasn't in court today and I'm sure when he sees this he'll be elated that his principle stance was vindicated. From the person I have known of him and he is a very happy man to be our working as last I saw him, I wouldn't doubt that he would consider exploring a constitutional challenge to get readdressed for the constitutional breach."
As you heard, Arthurs says that there are 16 other cases, which he knows of, where the court record for the trial for convicted persons are missing.
But, while that is the position of the appellant and his attorney, DPP Vidal completely disagrees with the outcome, and the premise of the decision.
This evening, she commented to us saying, quote, "On the 22nd of March 2017, we appeared in Court for the decision in the matter and were informed at 10:25 am, that the appeal would be dismissed and that the sentence and conviction had been affirmed. Reasons were to be provided at a later date. I was extremely surprised today, when those reasons were provided, to learn that the appeal had been allowed and the conviction was quashed and the sentence set aside.
I was even more surprised when I read the judgment and saw that the basis upon which the appeal had been allowed was a supposed irregularity in the taking of the verdict. In our respectful view, the verdict was a unanimous verdict and the Section relied on by the Court had no application."
As to the constitutional issue, the Office of the DPP has no control over the preparation of Records in criminal appeals. As pointed out in the judgment, that is within the province of the Registrar."
So, since she disagrees with the finding of the court, will she appeal to the Caribbean Court of Justice? Well, she says that Henry has already served his time in jail, and so the state would gain nothing by appealing. She pointed out that instead, the Crown would be leading a very costly appeal.
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