Judge puts priority on Keith Clarke murder trial

SUPREME Court Judge Justice Vinette Graham Allen has assured that “priority” is being given to the case involving the three Jamaica Defence Force (JDF) soldiers who will face a jury for the 2010 murder of accountant Keith Clarke, while promising that it will not clash with other closely watched trials now before the judiciary.

This comes after the Appeal Court last Friday ruled that the matter — halted in 2018 by the trial judge to allow for a judicial review after the defence raised concerns before proceeding to the Appeal Court — should be restored to the Supreme Court trial list.

Justice Graham Allen, during a case management hearing at the Supreme Court in downtown Kingston on Tuesday, said a trial date will be settled on February 21 when another hearing is scheduled. The February 21 date was set after the defence requested time to take instructions from their clients. The judge made the disclosure in response to concerns by Director of Public Prosecutions Paula Llewellyn about the passage of time since the murder and the indictment of three soldiers — lance corporals Greg Tinglin and Odel Buckley, and Private Arnold Henry — who are facing charges.

“This is a matter that had been on the trial list six years ago by virtue of a voluntary bill of indictment and the Crown had been ready when the decision was taken by the trial judge for there to be a judicial review. Dare I say that we are back at square one because the view that was taken was certainly the view that the prosecution had been submitting from the very beginning, so the matter has now been returned to the Supreme Court for eventually an early trial date,” the DPP said in calling for the matter to be tried this year.

“Madam DPP, surprised at you, I have already taken steps, steps are already taken…it is going to be tried this year and I will make sure that it is not in conflict with all the other cases of great public importance on the list. We do our work. From the decision was made on Friday I have been in touch with the criminal registry,” Graham Allen stated.

“I listened to the Court of Appeal, I read the judgement and I know that this case has to be given priority, early and that has been discussed already. We will be setting a trial date on that day [February 21],” the judge said.

The DPP, in the meantime, indicated that the Crown will be calling 16 witnesses and would be using the same indictment which had been proffered in the original trial.

“On the [previous] trial date the Crown was ready, and to my certain knowledge all the documents had been disclosed to my learned friends, including the indictment, and in light of the fact that the representation remains the same as all those years ago, unless they write to us indicating [that there have been any changes], I am going to assume that they have all the documentation,” the DPP stated.

Justice Graham Allen, in the meantime, made several orders instructing, among other things, that the defence confirm in writing to the DPP whether they have full disclosure from the previous trial, whether there is a need for any other material, and that the parties engage in discussions to determine whether any statements or facts can be agreed, while making it clear that the trial would be before a judge and jury.

According to Justice Graham Allen, all the orders were to “make it so that when we set the trial date. There is no issue”.

Peter Champagnie, speaking on behalf of the defence team, said, “The defence and the accused in particular are anxious to have their day.”

The three soldiers, in the meanwhile, had their bails extended to February 21 when they are expected to return to court. Tinglin is being represented by attorney Valerie Neita-Robertson; Buckley by Champagnie; and Henry by Linton Gordon. The proceedings are being watched by representatives from the JDF, the constabulary, and the Independent Commission of Investigations.

On Tuesday Clarke’s widow Claudette and daughter Brittani — who are the only civilian witnesses being called by the Crown — clad in black, observed the proceedings sombrely.

Clarke, an accountant, was shot dead at his Kirkland Heights, St Andrew home in May 2010 during what was a joint military/police operation to apprehend former Tivoli Gardens strongman Christopher “Dudus” Coke while the island was under a period of public emergency.

In July 2012, the Office of the DPP instituted criminal proceedings against the three soldiers, who were charged for the murder. However, at the start of the trial, defence attorneys presented certificates for each soldier signed by then Minister of National Security Peter Bunting and contended that the certificates (referred to as ‘the good-faith certificates’) immunised the soldiers from prosecution. The good-faith certificates were dated February 22, 2016 and were issued in accordance with regulation 45 of the Emergency Powers (No 2) Regulations, 2010. They stated that the actions of the soldiers, which may have caused the death of Clarke, were “done in good faith in the exercise of their functions as members of the security forces, for public safety, the restoration of order, and the preservation of the peace and in the public interest”.

In April 2018, the trial judge at the time ruled that the trial should be stayed, pending the determination of the full court as to the validity of the certificates.

The full court held that the circumstances in which the minister had signed the certificates (those being six years after the incident and four years after the voluntary bill of indictment was proffered) were manifestly unreasonable and unfair and that the certificates were unconstitutional, null and void, and without effect and as such the criminal trial of the soldiers was ordered to continue, without the soldiers being able to rely on the certificates.

However, the soldiers filed a notice of appeal in March 2020.

Last Friday the Appeal Court, which heard the matter on several dates between 2021 and earlier this month, affirmed the order of the Full Court that “the criminal trial initiated by virtue of the voluntary bill of indictment originally issued in July 2012 by the DPP be restored to the trial list and be permitted to continue”.

It, however, ordered that the trial should be preceded before the arraignment (the accused are informed of the charges against them and asked to enter a plea of guilty or not guilty) by a process in the nature of a voir dire (a separate hearing where the judge determines whether evidence is admissible and can potentially be entered into evidence in the trial) to determine whether the DPP can rebut the certificates of good faith issued by the minister.

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