The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal’s president has ruled Supreme Court judges should hold accused people liable for any misconduct exhibited in court by their attorney.

The lawyer who served as the impetus for the new legal precedent that could see defendants face unspecified “consequences” should their attorneys misbehave in court is defence attorney Geoffrey Farquharson.

Sir Hartman Longley, in a recent written ruling, admonished Supreme Court judges to warn defendants to control the attorneys who represent them, declaring a defendant can be held liable if his or her lawyer is disrespectful to the court.

More specifically, he declared that going forward, any judge concerned about any attorney’s conduct should tell that lawyer’s client to “reign in” their attorney or otherwise be held “responsible for the conduct and be seen as condoning his tactics”.

According to Sir Hartman, Mr Farquharson exhibited such “gross misconduct” during a recent murder case, and was so “rude, disrespectful and antagonistic” towards the judge, jury, Crown witnesses, and Crown attorneys in the matter, that the jury was “motivated” to make a complaint to the judge that Mr Farquharson was “rude”.

Mr Farquharson’s behaviour, Sir Hartman asserted, “created an atmosphere in the court that would have caused the jury to look adversely upon him and his client’s case”. In fact, Sir Hartman said, based on the contents of the transcripts, Mr Farquharson’s conduct during the trial “made it impossible” for his client to have received a fair trial.

That forced the appellate court to order the appellant, Christopher Butler, who is accused of killing Rapeson Jules on June 4, 2013, to be retried on that basis alone, despite his new attorney Stanley Rolle filing “numerous” grounds of appeal to attack his client’s verdict.

In his defence, Mr Farquharson submitted “it’s not the jury’s business if the defence is rude at all”, and submitted at the very least, it is “not a matter that the jury should have in their minds at all”.

Mr Farquharson further petitioned the court to “make it clear” to the jury that his duty as a defence attorney is to “defend his client as fiercely and actively as is possible”.

He thus explained that to a “jury who are lay people” and who “don’t understand what goes on in court”, the “tactics” employed by defence attorneys, particularly during cross-examination, may appear to be “aggressive”, lack respect or come across in some way as taunting the witness.

Conversely, Mr Farquharson submitted those are “perfectly legitimate tactics used by defence lawyers on cross-examination,” and said he did nothing but employ the “very best practice” in “defending a man for his life”.

Nonetheless, Sir Hartman, pictured, said the aforementioned “unequivocally” demonstrated that Mr Farquharson’s behaviour “caught the attention of the jury to the point where the jury was motivated to make the complaint to the judge that counsel was rude”.

“That could not have redounded to the benefit of the appellant and, more likely than not, operated to his prejudice,” Sir Hartman said. “Without, therefore, cleansing the mind of the jurors of this negativity, the infection may have extended to the deliberation of the jury to the point where a fair trial may have been imperilled. In that atmosphere it was unlikely that doubts would have been resolved to the benefit of the appellant.”

Sir Hartman emphasised that Justice Hilton’s conduct during the trial in the face of Mr Farquharson’s behaviour was “impeccable”. Sir Hartman said Justice Hilton remained “patient” under “considerable provocation”, and, in the “public interest”, sought to “salvage an important lengthy trial from shipwreck”.

Sir Hartman further commended the judge for giving an “impeccable summation” of the issues and putting the defence fairly.

However, Sir Hartman said he had one criticism of Justice Hilton, that in giving his directions to the jury, he “failed to address the danger that the jury would be misled” by Mr Farquharson’s misconduct.

“I think it is imperative when circumstances like this arise in the course of a trial, for the judge to make clear to the jury in his summation and if not before that they should not hold it against the accused when considering the question of his guilt or innocence that his counsel was rude, disrespectful and antagonistic toward the judge, the jury and the witnesses for the Crown as well as disrespectful of Crown counsel,” Sir Hartman said.

“Unfortunately, the judge in this case did not do this. He did, on several occasions, in the absence of the jury, warn counsel about his behaviour but that in our judgment was not enough to undo the damage done by the behaviour and misconduct of counsel. Especially given at one point that the jury had, it seems, come to the view that counsel for the appellant was rude.”

“It was therefore crucial, in my judgment, that the judge take further steps to advise the jury to separate the conduct of counsel from their consideration of the issues.”

Sir Hartman continued: “In future when a judge becomes concerned about the conduct of counsel for the defence perhaps he should have a hearing in camera and explain to the accused that he has to reign in his counsel or he would be responsible for the conduct and be seen as condoning his tactics.

“Additionally, it should be made clear in the summation...that the accused should not be prejudiced in their deliberations because of the perceived rudeness, disrespect and otherwise improper behaviour of his counsel in the conduct of his defence.”

Ultimately, Sir Hartman said it was “unfortunate”, but the appellate court had “no choice” but to set aside the jury’s verdict.

“The appearance that the appellant did not have a fair trial due to the misconduct of the appellant cannot be avoided,” he said, with the endorsement of fellow appellate Justices Sir Michael Barnett and Milton Evans. In the circumstances we have no choice but to set aside the conviction on the basis that the appellant did not have a fair trial owing to the gross misconduct of counsel and remit the case to the Supreme Court for a new trial.”

According to Sir Hartman, the Court of Appeal, though differently constituted, previously had to factor in Mr Farquharson’s behaviour in determining the success of an appeal of another person accused of a serious crime.

Sir Hartman said the present case mirrored that of Kofhe Goodman’s appeal concerning the murder of 11-year-old Marco Archer, which had as a key point for consideration Mr Farquharson’s misconduct while representing Goodman during the trial.

In fact, Sir Hartman said it is “immediately apparent” from an “almost cursory glance” at the transcripts of the present case that the very complaints made in Goodman’s appeal about Mr Farquharson’s behaviour—that the conduct of the defence was adversely affected by Mr Farquharson’s “belligerent and unnecessarily combative attitude to prosecution counsel and the judge”, resurfaced in the present case.

According to the headnotes of the Goodman case, during the trial, Mr Farquharson “constantly argued and bickered with the judge and prosecution counsel, repeatedly accusing the trial judge of ineptitude, bias against his client and collusion with the prosecution”.

The appellate panel of former President Dame Anita Allen, Jon Isaacs and Stella Crane-Scott, unanimously agreed that Farquharson’s conduct during the four-month trial was “persistent, deliberate, and gross”. The appellate judges noted that on numerous occasions during that trial, and often within “minutes of chastisement” by the trial judge, Mr Farquharson “openly and repeatedly defied the instructions of the judge in relation to a particular line of questioning and his conduct”.

The judges further stated that Mr Farquharson “repeatedly accused the trial judge of ineptitude, bias against his client and collusion with the prosecution, behaviour which eventually led to contempt proceedings”.

Mr Farquharson ultimately ended up serving a 14-day sentence in prison as an alternative punishment to the $2,000 for his behaviour at the time. Days before his arrest, Mr Farquharson told The Tribune he was “terrified” of going to jail, but added he intended to take a stand on principle by not paying the fine ordered by the court.