Senior Reporter
derek.achong@guardian.co.tt
Lawyers representing a man awaiting trial for the murder of Dana Seetahal, SC, have challenged the explanation given by Director of Public Prosecutions (DPP) Roger Gaspard for his office’s failure to file indictments almost five years after he and a group of men were committed to stand trial for the crime.
Earl Richards’ lawyers, Criston J Williams and Aaron Lewis, questioned Gaspard’s claims on Thursday, as they responded to a status report on the case provided in early July.
In the correspondence, obtained by Guardian Media, the duo said: “The response provides no clarity to the claimant and lacks reasonable justification for the undue delay.”
Gaspard was ordered to file the status report by High Court Judge Carol Gobin, after Richards filed a lawsuit challenging the delay in filing the indictments, which would start the procedure for the case to go to trial before a High Court judge and jury or a judge-alone based on the choice of the accused men.
In his report, Gaspard claimed that he was inclined to file the indictments but was still in the process of determining whether the case was evidentially sound and in the public interest.
He said while a magistrate had considered the case and ruled there was sufficient evidence for the men to face trial, he now has to conduct a comprehensive review of the evidence based on his prosecutorial discretion under Section 90 of the Constitution.
“In exercising my prosecutorial discretion, I must apply the evidential and public interest tests as laid out in my Code for Prosecutors, which requires me to analyse objectively, fairly, critically, and independently, all the evidence led before the magistrate and consider the public interest and the good administration of justice,” Gaspard said.
He said he had to ensure there was sufficient cogent admissible evidence by assessing the credibility of witnesses.
“In this case in particular, a significant amount of the evidence consists of intercepted communications, call data records, and CCTV footage, and thus special care has to be taken in assessing that type of evidence in determining whether an indictment should be filed,” Gaspard said.
He also noted that the process was delayed by restrictions during the COVID-19 pandemic, including the closure of court facilities.
Gaspard also pointed out that the over four-year wait experienced by Richards and his co-accused was not unusual in the local criminal justice system, as he noted that indictments against a group of police officers, formally accused of murdering three friends from Moruga in 2011, were filed almost a decade after their preliminary enquiry concluded.
Richards’ lawyers challenged Gaspard’s claims over general delays in the criminal justice system.
“The dysfunctional system is no excuse for the procedural delay over this period of time,” they said.
Stating that the pandemic did not affect the process, they said: “The judicial system was considered an essential service during the COVID-19 period.”
They also pointed out that Gaspard failed to address bias allegations that arose during the preliminary enquiry in the case, based on out-of-court communications between the presiding magistrate and a prosecutor.
“The preliminary enquiry and the prosecution continued in bad faith, giving rise to prosecutorial misconduct,” they said.
“The filing of an indictment and your ‘inclination’ falls short of satisfying the public interest test, because if this information is placed before an impartial, honest, and intelligent person, it will bring the integrity and fairness of the trial process into disrepute.”
They gave Gaspard 14 days in which to respond to the questions.
The general issue of the slow filing rate of indictments by the DPP’s Office was raised by Chief Justice Ivor Archie during his annual address for the opening of the 2020/2021 Law Term in October 2020.
Stating that the criminal justice system was on the verge of collapse, CJ Archie then questioned why only 12 indictments were filed that year.
In response, Gaspard sought to defend his office, as he claimed it was due to several factors, including perennial short staffing, limited office space, the COVID-19 pandemic and a decision taken by the Judiciary to rely solely on the electronic filing of court documents.
He also claimed that while his office had filed between 150 and 300 indictments between 2010 and 2020, there was a long list of indictments, which pre-dated them, that were still awaiting trial.
With the tenth anniversary of Seetahal’s murder last year, there was again discourse between Gaspard and the Judiciary over the filing of indictments in her case.
While Gaspard claimed his office was awaiting the voluminous case file from the preliminary enquiry, needed to file the indictments, the Judiciary claimed it was sent electronically.
The Judiciary amended its rules for electronic copies to be used, but Gaspard still maintained that the hard copy was required under the provision of the Administration of Justice (Indictable Proceedings) Act (AJIPA).
About Seetahal’s case
Seetahal was shot dead behind the wheel of her SUV while driving along Hamilton Holder Street in Woodbrook on May 4, 2014.
On July 25, 2015, Rajaee Ali, his brothers Ishmael and Hamid; Devaughn Cummings, Ricardo Stewart, Earl Richards, Stephan Cummings, Kevin Parkinson, Leston Gonzales; Roget Boucher and Gareth Wiseman were charged with the crime.
Ali’s wife Stacy Griffith, Deon Peters and David Ector were charged under the Anti-Gang Act for being members of a gang, while Griffith was additionally charged with assisting the gang.
The gang charges were initially dismissed based on the fact that they were laid indictably (heard and determined by a High Court Judge and jury), as opposed to summarily (heard and determined by a magistrate), as required for first-time offenders under the legislation.
The issue resulted in Peters and Ector being freed. Griffith remained before the court, as she faced the additional charge that was properly laid. Griffith’s charge for assisting the gang has since been discontinued by the DPP’s Office.
The Court of Appeal eventually reversed the decision and effectively reinstated the charges for being members of a gang.
As Ector was murdered in July 2018, only Peters was rearrested and recharged with the offence.
In December 2017, the murder charge was discontinued against Stephan Cummings, after he was made a State witness. He was instead charged with conspiracy to murder Seetahal.
The members of the group were committed to stand trial in 2020.