The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

CALLING parliamentarians “either very dumb or very dangerous,” attorney Wayne Munroe, QC, said the Criminal Evidence (Witness Anonymity) Amendment Bill 2018 will almost certainly be struck down as unconstitutional by the courts.

The bill empowers a judge, upon application from a prosecutor or defendant, “to permit a witness to be seen and heard in his natural voice by a magistrate, magistrate’s panel or by the judges, but not by the prosecutor, the defendant or his attorney or by the jury”.

The bill was passed by the House of Assembly Wednesday.

Mr Munroe said the bill contravenes Article 20 of the Constitution, which entitles accused people to a fair trial. He noted the United Kingdom’s House of Lords ruled in 2008 that Ian Davis, a man convicted of a gun killing on the basis of evidence by an anonymous witness, did not receive a fair trial.

The man had been jailed in 2004 for murdering two men at a New Year’s Eve party after three witnesses identified him as the gunman.

The law lords said in their ruling: “No conviction should be based solely or to a decisive extent upon the statements and testimony of anonymous witnesses.”

The UK’s Parliament subsequently changed its law, allowing anonymous witness testimony while putting in place safeguards to protect the rights of the defendant.

Their law mandated that before a judge could approve such an application, consideration must be given to the “general right of a defendant in criminal proceedings to know the identity of a witness; the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; whether the witness’ evidence could be properly tested without his or her identity being disclosed; whether there is any reason to believe the witness has a tendency to be dishonest or has any motive to be dishonest in the circumstances of the case” and “whether it would be reasonably practicable to protect the witness by any other means other than my making a witness anonymity order specifying the measures that are under consideration by the court.”

The Bahamas’ Criminal Evidence (Witness Anonymity) Act, passed in 2011, requires a judge to consider these issues. Nonetheless, Mr Munroe said even if such safeguards are in place, they could be challenged for being insufficient.

“How do they justify passing something they know is unconstitutional?” he asked. “What do they say? We know this is unconstitutional, we know this breaks our supreme law but we in Parliament are going to pass laws that go against our supreme law? That is irresponsible. “What you end up saying is that I know this material is going to offend the supreme law, the Constitution but as a government we are going to set a legislative course purposely to offend the Constitution. That is a very dangerous government.

“Extrajudicial killings offend the Constitution and if they are willing in a public case to offend the Constitution to pass a bill why won’t they offend the Constitution by ordering extrajudicial killings? That’s the next step hey? We can’t convince these people according to the court system so we just going to kill them? That’s the attitude that these folks appear to have. It’s dangerous. They either very dumb or they very dangerous.”

He said any defence lawyer “worth his salt” will challenge the amendment through a constitutional motion that would have to be ruled on by the Supreme Court and no doubt end up in the Court of Appeal and the Privy Council.

“In the meantime, I suppose they won’t prosecute any cases upon which they say it requires this screening so you will set back by five or eight years prosecutions and at the end of the day I don’t expect the Judicial Committee of the Privy Council will say anything different than the House of Lords said in setting aside the Davis ruling, that it is unfair and the accused and the counsel must be able to see the witness.”

He said those accused of crimes have the right to confront an accuser.

“Let’s say somebody is screened from me and has his voice changed so I don’t know who it is. This could be somebody who has borne a grudge against me all his life but I won’t know that. I can’t put anything of that nature to the witness. Let’s assume it’s a homicide. My case is I didn’t kill the person, somebody else did and the witness is that person who actually did the killing. I can’t see him or her. Or you may have had a vibe with me all your life that is well documented. You may have lied on me before in a way that I can prove. But I don’t know who you are so I have no way of bringing that to the attention of the tribunal of fact.

“Could you imagine if the anonymous witness is my friend wife or sweetheart and I don’t know that? These people are just ridiculous. Dumbness is being elevated to an art in this country. Let’s assume I say I see (a politician) kill someone and I scared of what he gon’ do me so I say I need you to screen me from everybody. Would he think that is fair? If not, why would you inflict that on someone less fortunate in this country?”

On Wednesday, some parliamentarians noted witnesses have been killed before. Mr Munroe, however, said people must be careful drawing a connection between a witness’ death and their status as a witness.