by Bennette Roach
The David Brandt that the current lead attorney trial that somewhat began in earnest on February 28 from that time had been dealing with what was reported as preliminary matters and held mostly ‘in-camera’ which generally means that the press and the public are prohibited from the hearings.
These hearings ended with further potential delays in the offing and further continuation of the trial to begin at an unspecified date in June or July of this year. This as attorney/s for David Brandt are dissatisfied with most of the results as they appear in the judgments given by His Lordship Justice Rajiv Persad.
Among the matters surrounded an effort to have the Brandt’s revoked bail since June last year. It was not an application for bail as His Lordship Persad noted. Before him was an application filed by Dr. Dorsett for the defendant titled “Notice of Application pursuant to section 20(1) of the Constitution of Montserrat” and alternatively a “Notice of Application for re-admittance to bail”.
As the judge noted in his judgment on this matter, “In this notice, the defendant seeks three forms of relief.
Firstly, he is seeking a declaration that the hearing of the 17th and 18th of June 2019 by Mr. Justice Evans was in breach of the defendant’s constitutional right to the protection of law.
Secondly, he is seeking an order that any orders made at that hearing of the 17th and 18th of June 2019 be set aside.
Thirdly in the alternative, that this court re-admit the defendant to bail on the same terms and conditions as obtained prior to the revocation of Bail on the 18th June, 2019.
The final clauses of the six-page judgment reads:
Accordingly, this court is not prepared to exercise its discretion under section 20(1) the Constitution of Montserrat to grant any relief on this application having regard to the academic nature of this exercise and it is also the view of this court, that the public interest in the issues raised in this matter are not of a nature that requires this court to adjudicate on the issues raised by the defendant relative to the hearing before Mr. Justice Evans in June 2019. (see https://www.themontserratreporter.com/brandts-trial-to-begin-february-28/)
This court, therefore, does not need to consider in depth when the application to raise constitutional issues before this court relative to the hearing before Mr. Justice Evans constitutes an abuse of the court process having regard to the availability of common law remedies or whether it is in fact appropriate for the judge sitting in the criminal trial to seek to pronounce on the lawfulness/ constitutionality of a previous decision relative to bail which strictly speaking is not part of the fair trial process or is an issue which can be raised in the course and conduct of the criminal trial going forward.
That having been said this application is therefore dismissed.
The other major issues of the days substantive hearings which lasted from March 2 – 9, of which there was no hearing on three days related to rulings on three preliminary applications.
These were (1) the defendant’s entitlement to challenge the Crown’s right to stand-by jurors. (2) Whether the crown has a right to peremptory challenges; and (3) a major one coming out of the recent appeal court sitting in January, the ‘admissibility of illegally obtained evidence’ at the trial.
In all these matters, Dr. David Dorsett, and Mr. David Brandt in his own defence; and Miss Anesta Weekes QC, Mr. Oris Sullivan OPP and Mr. Henry Gordon Senior Crown Counsel for the Crown.
At the end of the 21-page 44 clauses judgment the acting judge gave four rulings:
- That the use of the power to stand by jurors pursuant to section 27(b) of the Jury Act is unconstitutional and cannot be relied upon by the Crown.
- That in order to ensure equality of arms the provisions of section 27 of the Jury Act are hereby modified so as to allow Crown a peremptory challenge to three jurors identical to the rights and entitlements of a defendant in this matter.
- That the right to stand by may be exercised by the Crown only if there is consent by the defendant or defendants in a case, or where there are exceptional circumstances.
- That the defendant’s objection to the admissibility of WhatsApp messages is overruled and the Crown will be allowed to adduce such evidence at a trial of this matter.
The first three rulings, here the defendant is claiming victory, while on the fourth they remain adamant that the judge is wrong as much as the hearing is expected now to continue in June there are hints that this will find the appellate courts.
There was the other side matter which there was no written ruling available, reportedly Justice Persad, acting judge, has ruled according to a draft of an Originating Motion via Fixed Date Claim where it seeks some 13 remedies in respect of the appointment of Dr. David Dorsett an amicus curiae in the said David Brandt trial.
- Among other remedies, the Claim seeks eight declarations (1) that for the purposes of section 7(2)(d) of the Constitution of Montserrat (“the Constitution”), “a legal representative at the public expense” is a legal representative provided for by the Government of Montserrat for the purposes of defending a person charged with a criminal offense.
- A declaration that for the purposes of section 7(2)(d) of the Constitution of Montserrat (“the Constitution”), “a legal representative at the public expense” is not an amicus curiae, whether appointed by an order of the court or otherwise;
- plus six others directly on the same ‘amicus curiae’ and others including damages and costs.
But there is a window for that matter to be rectified if indeed there is a postponement of the trial to June/July, as our information is that there are other options facing the court, but which the prosecution, (one doesn’t know their standing, as information again says that is a matter that should involve the Attorney General) is strangely arguing against that judgment.
