The Office of the Director of Public Prosecutions has asked the Court of Appeal to order a retrial for Vybz Kartel and his co-accused, despite conceding that the constitutional rights of the men are likely to be breached as a result of such an order.
The prosecution made the concession as it closed two days of arguments before the appellate court.
The matter is being heard by Justices Marva McDonald Bishop, Paulette Williams, and David Fraser.
Nora Gaye Banton reports.
It wasn’t the first time the prosecution was conceding that the men’s right to a fair trial in a reasonable time would be breached by an order for a retrial.
But this time, the team from the DPP’s office acknowledged that the concession was a hurdle to the re-trial order they were seeking from the Court of Appeal.
Prosecutor Loriann Tugwell acknowledged the difficulty the prosecution faced soon after getting to her feet.
Justice McDonald Bishop commended Tugwell for her frank admission, pointing out that the prosecution needed to prove to the Court that the acknowledged breach of the men’s constitutional rights was justified under the Charter of Rights.
The Justice noted the prosecution would need to prove the justification with evidence.
Justice McDonald Bishop pointed out that the clock started ticking on the men having a fair trial in a reasonable time after they were charged in 2011.
She said it would be incorrect to believe the starting point was March 2024, when the Privy Council overturned their convictions.
In response, prosecutor Tugwell noted that acquittal or dismissal of the case should be seen by the Court of Appeal as a last resort option.
She said dismissing the case should only be an option in exceptional circumstances, where a fair trial was completely out of the question.
The prosecution maintains that a fair trial for Kartel and his co-accused was still a strong possibility if the case is sent back for a re-trial.
During the morning session of Friday’s hearing, prosecutor Janek Forbes told the three judge panel that sufficient safeguards existed to manage any risks that pre-trial publicity may cause.
Forbes urged the Court of Appeal to trust that an empaneled jury would take their oath seriously and not be unduly influenced.
He says despite the high publicity in the case, the judges should look at other high profile matters in coming to their decision.
Forbes highlighted the US case of Bill Cosby and the South African case of Oscar Pistorius.
Forbes says judges allowed those cases to proceed amid heightened publicity because of the interest of justice.
Justice McDonald Bishop appeared unconvinced by the comparisons, pointing out that each case had to be judged on its own merit.
In closing the prosecution’s case, Tugwell told the court that it was because prosecutors cared about Kartel and his co-accused why they wanted the case tried on its merit and not simply dismissed on a technicality.
Final arguments in the case are set for Tuesday morning.
It’s unclear when the Court of Appeal will deliver its ruling.
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