DECISION day for KARTEL

All eyes will be on the Supreme Court in Kingston today where Justice Andrea Thomas promises to ‘school’ the parties involved in her ruling on Vybz Kartel’s habeas corpus application, pending a murder retrial decision in the Court of Appeal.

The retrial hearing for Kartel, whose given name is Adidja Palmer, and his co-accused, Shawn ‘Shawn Storm’ Campbell, Kahira Jones, and Andre St John’s is set to begin on June 10.

Yesterday, the habeas corpus application seeking the release of Palmer, Campbell and St John, was adjourned until 2 p.m. today.

The submissions, which were made yesterday by the applicants’ attorney, Isat Buchanan, did not relate to the fourth co-accused, Jones, who, reportedl,y has another matter before the court.

The men were convicted in 2014 for Clive ‘Lizard’ Williams’ murder in 2011.

Williams was allegedly killed after he failed to return two unlicensed guns given to him by Kartel for safekeeping.

Kartel and his co-accused denied any involvement in the killing of Williams.

In March, the Privy Council quashed their murder convictions, citing juror misconduct, and sent the case back to the Court of Appeal for a ruling on whether they should be retried.

Buchanan said the habeas corpus application is not a contentious one but is before the court because of a lacuna in the law, which is depriving the appellants of their liberty, citing the apex court’s decision more than two months ago.

“The principle, we submit, is very straight forward. In the absence of an order from the Privy Council or the Court of Appeal and we are submitting strongly my lady, there is nothing in place for the continued detention of the applicants before you. Nothing in Jamaica law, nothing that Parliament has even contemplated, and that is why we are before you,” Buchanan said.

Buchanan told the court he asked, by way of a letter to the Department of Correctional Services (DCS), who are the first respondents in the application, on what authority the men are still detained, and was directed by the DCS to the court.

The attorney general and the Office of the Director of Public Prosecutions are, respectively, the second and third respondents.

“At this point, we have fanciful theoretical suggestions of what, at best, this court can try to find or create a law to say that the men are detained legally following a quashed conviction. I would submit that is not the state of the law, and this court should reject it,” Buchanan said.

No longer viewed as convicts

Buchanan told Justice Thomas that based on current legislation, it was within her remit, if mindful, to release the men unconditionally or in contemplation of the hearing before the Court of Appeal.

“Conditions would look like bound to appear at their hearing, and that gives the court the authority to extend what order you give in light of what is before the court,” Buchanan submitted.

Buchanan stressed that the sentencing no longer exists and that the men were no longer viewed as convicts.

“To fit their current situation, and I am referring to the lacuna, the Privy Council decision to the point of retrial, there is nothing in law that can address that situation. We would have to perform some magical sort of construction to say it looks like this or it looks like that … feel free to school me on that, My Lady, because that is why I am before you,” Buchanan said.

“You will be schooled in the judgement tomorrow … you all will be schooled,” Justice Thomas said.

Lisa Whyte represents the first and second respondents, and Paula-Sue Ferguson represents the third.

Whyte got off to a rocky start in her submission, causing Justice Thomas to stop her on several occasions, at one point indicating that she was not before the Court of Appeal, to which her arguments, seemingly, pointed.

“Collect your thoughts properly… collect your thoughts … remember, I am not sitting at the Court of appeal. All I am dealing with is whether or not there is an unlawful detention,” Justice Thomas said.

“We submit that the Privy Council judgment does not automatically mean that the applicants are to be released. What is clear from the Privy Council judgment is that the convictions have been quashed, but they did not deal with the issue of detention. They did not make an order as to whether or not the applicants and their co-accused are to be released. What is clear is that matter is reserved for the Court of Appeal,” Whyte said.

Ferguson was brief and told the court that her submissions differed somewhat from those of Whyte.

“What the Privy Council has done is to quash the conviction, so, essentially, the conviction is unsafe or wrong. This has now reserved for the Court of Appeal of Jamaica the consideration of acquittal or a retrial of the applicants as a final disposition of the matter,” Ferguson submitted strongly.

She argued that if an order is made by an appellant court to quash a conviction, an order of acquittal has to be entered or a new trial ordered and cited Section 14 subsection (ii) of the Apellant Jurisdiction Act.

Ferguson told the court that the writ of habeas corpus, at this time, was not an appropriate application.

She said that like Whyte, they reled on Section 18 of the Corrections Act.

“Essentially, what it is saying is that the superintendent has the authority to keep the men in custody unless the order has been discharged, and we are submitting that the order made by the Privy Council would not affect this section as the men have not been discharged. That is what would be done at the Court of Appeal,” Ferguson said.

She said that the men lawfully remained in custody pursuant to the commitment order on the B-20 form.

andre.williams@gleanerjm.com