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Last modified: April 03. 2002 10:13AM

Warner tells jury: I'm sorry about 'charade'

Assistant Justice Archibald Warner yesterday apologised to a jury for the “charade” yesterday morning in Supreme Court which he claimed had “made a mockery out of the legal system.”  He spoke out after two men were acquitted of grievous bodily harm with intent after just 30 minutes of their trial – because the victim would not give evidence.  David Anthony Dill, 33, and Andre Anthony Tucker, 20, were accused of assaulting Stephen Proctor – the man who was shot by Police tactical officers in a seperate incident last year – in Westgate prison in February last year. They both denied the charge.

Prosecutor Charmaine Smith opened the hearing by telling the jury that it was the Crown’s case that both Mr. Dill and Mr. Tucker had entered Mr. Proctor’s cell and attacked him, punching, kicking and slapping him. She said the assault finally came to an end when Mr. Proctor managed to escape under his bed.  She said: “In my view, it’s a very simple case. It’s about an assault. An assault that is alleged to have taken place at Westgate Correctional Facility.” She said Mr. Proctor had  complained earlier that day that his Walkman stereo had gone missing. The complaint led to a search of all cells.
Later, she said, Mr. Dill and Mr. Tucker entered his cell and attacked him. Mrs. Smith said: “He was taken to King Edward VII Memorial Hospital. It was determined that he was suffering from internal bleeding. He was operated on by a surgeon. He stitched tears in Mr. Proctor’s spleen.” However, the case progressed no further.

Mrs. Smith then called her only witness, Mr. Proctor, to the stand to give evidence, but he refused.

Mr. Proctor, from Sandys, told the court:

“I have been trying to get these charges dropped since even before the preliminary inquiry.

“It’s the Police and the prosecutors who want to pursue this matter. I have no evidence to give in this case.”

Mrs. Smith then told the court that she had completed her evidence in chief, and both defence lawyers made an application that there was no case to answer.

Assistant Justice Warner said: “Ladies and Gentlemen of the jury, let me first apologise to you for this predicament we find ourselves in this morning.
“It’s no more than a charade and tends to make a mockery of our legal system and the system that normally operates in these courts. Normally.... we would have gone through completely different steps. “I would have asked who was the foreperson and then we would have normally heard the evidence in this case.

“However, the prosecution decided to pursue this matter in this most unusual fashion and you heard the witness come to the witness box and say what he had to say. You were empanelled to hear the case quite properly.”

Assistant Justice Warner said as there was no evidence against the men, it was his duty to direct the six-man and six-woman jury to find each of the defendants not guilty.

Yesterday afternoon, Director of Public Prosecutions Khamisi Tokunbo said he was happy with the proceedings and said there was never a guarantee that a key witness would give evidence. He said: “He (Mr. Warner) is entitled and he can say what he wants. It’s not for us to comment. I have nothing to say about that. We heard from the client for the first time (today). We had difficulty contacting the client, Mr. Proctor. The first time my Crown Counsellor spoke to him was this morning outside of the court. “Witnesses take different positions. They either co-operate, or they choose not to co-operate, at the last minute. That’s the predicament.”

Last night, a lawyer said the usual course of action in this case would have been for the prosecution to apply for a Nolle Prosequi, which would have saved the time of the jury and the court as the trial would never have had to have been started. The Nolle gives the prosecution a 12-month stay on the case. The case does not go ahead, but if the prosecution comes up with evidence in the 12 months after the stay is granted, they can re-instate the case and call the new evidence into court.
The lawyer said: “Perhaps a Nolle would have been a more efficient use of the court’s time.”

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