COMMENTARY: A Teenager’s Decision – National Outrage


                                                                  RAWLSTON POMPEY

It has always been the contention of former House Speaker Dame D. Giselle Isaac and Queen’s Counsel, Sir Gerald A. Watt KCN, that the law was either misinterpreted and/or misapplied. They may have seen stranger things than fiction. Even so, it matters not if  ‘Dame Giselle’ had likened ‘Sir Gerald’ to the domesticated male animal called a ‘Jackass;’ it also matters not if he in turn had likened her to the female, correctly called a ‘…Jenny ass.’ Though through their occasional public spats, they continue to show despise to each other, they have shown commonality of understanding of the term ‘…The Law is Asinine.’ Incidentally, the citizenry makes no distinction of sex, they just simply call a talkative or egoistic, braggadocios person, a ‘…Jackass.’ Lest it may be misconstrued, as much as they may appear verbally vicious and cross, neither is tethered or fed on hay or grass.


When one speaks to the ‘…Public Conscience,’ one takes into consideration the fundamental value of that which is cherished by members of society and protected by law. Clearly in different categories, both share commonality of understanding that the law, effectively enforced, improperly interpreted, with procedures ignored or circumvented some decisions often disturbs the public conscience. Procedural deviancy had often triggered rebuff and abhorrence, thereby outraging the conscience of the nation. Constitutionally, it is written that (i) …The law symbolizes the public conscience; (ii) …that every citizen above the age of criminal responsibility ‘…owes to it an undivided allegiance.’ Citizens may rationalize expression of private views of justice or expediency. The law not only imposes a duty upon agents of the State, but also it shall subject itself to the law’ [CO: 1981: Founding Principle D]. Not infrequently, citizens have been given reasons to believe otherwise.


Though the ‘…Gentle Lady and the Gentleman’ kept beating each other, neither has been endowed with the instinct of ‘…Balaam’s Donkey’ [Numbers 22: 23]. Moreover, even as they battle for supremacy of knowledge and wisdom and superiority of understanding, they could never be so inspired to see danger and shy away from it. Though each may or may not savor engaging each other in verbal public squabbles over ‘…interpretations and applicability of Hose Rules,’ both have viewed the law in a particular way. They have contended that the ‘…Law is Asinine.’ While they may have qualms over certain issues, both know that Parliament intended no such interpretation. In spite of the public charade, both have exhibited sufficient intelligence and intuitiveness to know when the law was made to be seen as absurdly ridiculous.


This commentary looks at the dismissal of two serious indictments instituted by the office of the Director of Public Prosecutions (DPP) against a then serving member of the Police Service. A Corporal, then assigned police prosecutorial duties at the Magistrate’s Court, was in keeping with provisions contained in the Police Act, with exercisable delegatory powers by the Commissioner of Police [Section 31: Chapter 330]. There is also a ‘…time immemorial inter-agency working relationship’ with the office of the Director of Public Prosecutions (DPP). Through his ‘…Fiat,’ a written one line letter advising to proceed with committal proceedings,’ authority is delegated to police prosecutors to act on his behalf. These matters are neither within the prosecutorial competency of police prosecutors, nor the adjudicating jurisdiction of Magistrates.


There may be no doubt that human sexuality continues to provoke public outrage. Enacted laws intended to protect underage, innocent, vulnerable and/or at-risk children from predators and pedophiles, appeared not to have the deterrent effect on those the legislation targets. The pillars of morality shook and the moral fiber of society had snapped in 2016. It was not associated with seismic activity of the magnitude 7.0 earthquake that had flattened the poverty-stricken and disaster-prone Caribbean nation of Haiti [January 12, 2010]. It was the result of a grave sexual act perpetrated against ‘…a 13 year-old female by a 47 year-old police officer, an agent of the State.’ When the pillars shook again in 2018, though incomparable to the magnitude 5.9 earthquake that had almost flattened the northern tip of Haiti [CNN: October 7, 2018], the populace became mortified. They showed a spirit of unification, voicing their ‘…dismay, disgust and dissatisfaction.’ These came when the trial-free accused was released from the jurisdiction of the Criminal Assizes [October 5, 2018].


While ‘Dame Giselle and Sir Gerald’ contended such asinity, it may have been manifestly evident when Crown Counsel Shannon Jones-Gittens, clearly for reasons of expediency, reportedly caused a 15 year-old minor to present herself in open Court. She was simply required to say to a Judge, ‘…After speaking with ‘…my mother; …guardian; …Counselor and a Crown Counsel, I have decided to forgive the accused.’ Likened to the mother and guardian, the other two people are considered ‘…persons in authority.’ Dependent upon the state of mind and receptive attitude, they could also wield positive or negative influence on ‘…troubled minds.’ Where a particular trend of thought may have been expressed, they shall have been so persuasive as to influence a thought pattern that may have resulted in criminal prosecution of an accused that may have breached her trust and exploited her innocence. This, invariably, has been the investigative thinking of most investigators.


Apart from the miraculous conception of the ‘…Holy Virgin Mary’ [Luke 1:31], in the secular life of man, after copulation, fertile spermatozoa and whatever else nature must do, a female is impregnated. If unplanned or unwanted, it had often been rumored that prospective mothers had visited ‘…Back Room Operators to abort pregnancies.’ Internationally known, some medical facilities were said to have become ‘…Grave Yards’ for unborn fetuses. Though not frequently, for some criminal cases, some adjudicators may have been exploitatively used as ‘…Undertakers,’ while the Judiciary appeared to have been disguisedly and expediently turned into ‘…Grave Yards.’ These have been international phenomena. There were many instances in which reasonable inferences may have been drawn.  


In the instant case, the accused, a member of the Police Service and a former Police prosecutor, was accused of ‘…Kidnapping and having unlawful sexual intercourse with a minor. After a quick, futile, but short trek, he returned to be charged, remanded and subsequently committed by the Magistracy to stand trial at the September Criminal Assizes [2018]. He was indicted by the Crown’s chief prosecutor, the Director of Public Prosecutions (DPP). In the instant case, likened to ‘…an undeveloped fetus in an unwanted pregnancy, (a) …Before a Jury was empanelled; (b) …Before the Provost Marshall could read the indictments; and (iii) …Before the accused could say ‘…Not Guilty Your Lordship,’ a criminal trial had been aborted. There was clearly no pursuit of the legitimate mischief aimed by Parliament and the underpinning rationale of the offence, in offering protection to under age children from ‘…sex predators, pedophiles and sexual exploitation.’ Clearly not ignorant or innocent, Gender Affairs Minister Samantha Marshall appeared worried and unhappy over that which had transpired.


Moved to anger, the nation had been clamoring for answers. Seeking to appease the mind of enraged citizens, a frightened political directorate appeared to have been impelled to place high on the Cabinet’s agenda ‘…Matters of urgent Public Interest.’ A statement relayed through Chief of Staff Lionel ‘Max’ Hurst, seems reminiscent of the religious song ‘…Gentle Jesus, meek and mild; …Look upon a little child; …Pity my simplicity; …Suffer me to come to Thee; …Guard my helpless innocence; …Sweetly ignorant of ill; …Innocent and happy still’ [Charles Wesley: 1707-1788]. Neither the incident nor statement appeared to have brought happiness to members of the ministerial community. Likened to former Gender Affairs Minister, Dr. Jacqui Quinn-Leandro after a T.N. Kirnon School student Jemuel Samuel 10, was brutally murdered [Caribbean 360: June 29, 2006], Samantha Marshall may also have unwittingly crossed the path of Director of Public Prosecutions (DPP), Anthony Armstrong who had reportedly shrugged off her inquisitive intervention.


Even after committal, accused persons must be indicted by the DPP to stand trial before a Judge and a 12-member Jury. The most critical ‘…Prosecutorial Factors’ are (i) …the preponderance of evidence showing a realistic prospect of conviction; and (ii) …the interest of the public, balancing it with that of victims of crimes.’ Even so, the scales shall tilt more on the side that serves the public or common good. Though he may exercise a discretion and powers contained in the Constitution [1981: Section 88], when a DPP indict, he would have been fully satisfied with the enabling factors. His legal duty and prosecutorial responsibilities as his titular position suggests are to the public, and not necessarily to those victimized by criminals. As contained in the Constitution powers residing with a Director of Public Prosecutions include; (a) …Institute and undertake criminal proceedings any person before the Court; (b) …Take over and continue any such criminal proceedings; and (c) …Discontinue at any stage before judgement is delivered any such criminal proceedings’ [CO: 1981: Section 88]. 


In their ‘…Parliamentary Wisdom,’ legislators anticipated promiscuity in, and among children. They also anticipated that whether or not some had reached puberty, males would ‘…sexually hound, abused and/or subject them to exploitation. Categorizing them as ‘…vulnerable and at-risk,’ they had conscientiously considered, deliberately and purposefully created certain offences. These offences are sometimes committed against a person, while in some cases, they are not. For instance, the ‘…Unlawful possession of Firearms and as in the instant case, ‘…Sexual intercourse with a female under 16 years’ bear the same liability. These are not only offences against the State, but also limit the discretionary powers of Crown prosecutors to that which serves the public’s interests or where there was no preponderance of evidence, and shall prosecute when shown to have a ‘…realistic prospect of conviction.’ 


Unlike many other offences, where ‘…Mens Rea’ or a guilty mind is the key evidential element, conduct exhibited in which reasonable inferences may be drawn, strictly speaks to ‘…Strict Liability.’ Invariably, these are given dual mischief. In the instant case, mired in controversy, the State may not only have failed a then t13 year-old victim, but had spared the alleged perpetrator the ‘…Rod of Correction.’  The strict liability nature of the offence, warns that any man committing a sexual act with a female under 14 or 16 years or any adult female committing a sexual act with a male person under the age of 14 or under the age of 16; shall not only face the criminal Court, but if convicted, shall be liable to institutional residency for ten years [SOA: No.9 of 1995]. The State appeared to have neglected its responsibility in placing one of its agents before a Judge and Jury.


Parliament anticipated that a sexual appetite, an uncontrollable desire and high temperature may develop in man. Legislators anticipated that sex offenders may be so overwhelmed for sexual pleasures and gratification that they may attack victims and potential victims, regardless of age or sex. Thus, without consideration to ‘…age of responsibility, majority or maturity,’ men would most likely seek to ravish the vulnerable.’ In ‘…Conscious Anticipation,’ legislators, considering the need to protect and punish sex offenders, enacted the ‘…Sexual offences Act’ [No. 9 of 1995]. It was to be rigidly enforced against those who would violate its provisions and accordingly, vigorously prosecuted. The Act was specifically crafted for the protection of females of all ages.


The Legislature also anticipated that some ‘…hard tone men’ [former House Speakers D. Giselle Isaac], would be preying on their innocence and vulnerability and interfered with their chastity. Parliamentarians, looking into the sexual behavior of future generations anticipated many acts of sexuality and apart from rape, created several kindred offences. They identified and defined Incest and Buggery.’ They anticipated that men with uncontrollable sexual appetite may make brazen attempt at fondling women and girls and thus, called such act ‘…Indecent Assault.’ The law makes it clear that ‘…A person under the age of sixteen in law cannot give consent.’ It defines the act as, ‘…An assault accompanied by words or circumstances indicating an indecent intent.’ Then there is the offence ‘…Serious Indecency,’ when other than sexual intercourse, a person used his/her genital for the purpose of arousing or gratifying sexual desire.’


Empathy; …expediency or sentimentality,’ were never to be factored in considering whether to prosecute and where convictions were obtained. The ‘…Sentencing Philosophy’ of retired Justice Albert Redhead was often reflected in the severity of sentences imposed [SLO: …]. Expressing grave concern over ‘…child sex abuse,’ St. Lucia’s Director of Public Prosecutions Victoria Charles-Clarke acknowledged ‘…We are in a critical situation’ [SLO: July 10, 2014]. Infrequently, State agencies were sometimes seen as deviating from established procedures.’ While circumstances may influence such deviation, an agency runs the risk of incurring the wrath of the public. The instant case involving an underage female and a male adult supports such contention. There are two possibilities, either (i) …the witness had been influenced or (ii) …those that interacted with her, whatever the underlying motive, if any, she had exploited their simplicity or empathy to good advantage.


Incidentally, the apparent ‘…non-prosecutorial role’ of the Crown Counsel speaks volume. Such role contradicts the ‘…Evidentially Preparedness’ of the main prosecution witness for trial. For the citizens, the unexpected had happened. In rather ‘…Peculiar Circumstances,’ the female victim of a sexual assault on her virginity was reportedly invited to the High Court of Justice. Though provisions were made to hear sexual cases in camera, she was reportedly placed on the witness stand in open Court, not for the purpose of testifying against the male accused, but to apprised the jury-less Court of either a ‘…voluntary; …influenced or coerced ‘…non-prosecutorial decision’ [October 2, 2018]. Though there was a significant disparity of age; …the accused was a person in authority; …the nature of the offence was grave, yet these appeared not to have been factored in considering the particular course of action.


From a prosecutorial perspective, due to lengthy delays for criminal trials and the passage of time, what obtained before trial on a fixed date were often ‘…Pre-Trial Briefings.’ Witnesses are interviewed and memory is refreshed on statement of facts pertinent to the particular criminal acts; …accused persons under the jurisdiction of the Court, whether remanded or bailed, are notified; …an array of jurors is summoned; …a selection of twelve jurors is empanelled. Collectively, they hear the facts of the case, and then retire to make a determination of ‘…innocence or guilt.’ If there were any doubts about such contention, it may have been seen in the High Court of Justice in which a ‘…then 47 year-old police officer allegedly engaged in unlawful sexual intercourse with a 13 year-old female,’ walked free. The accused, fortuitously escaped criminal prosecutions.


An opportunity to have test or improve upon her prosecutorial skills may have eluded Barbudan-born, British-trained attorney, Crown Counsel Shannon Jones-Gittens. It was apparent that a ‘…non-prosecutorial decision’ had been left to the determination of a then ‘…Sexually Ravished’ 13 year-old female student. The parties before the Court knew exactly what were to unfold. The victim has now attained the ‘age of 15 years,’ while the sex offender has attained the ‘age of 49 years.’ Both victim and perpetrator reportedlystood stoically before a non-trial Judge. The citizenry had not the slightest inklin, but subsequently sensed the ‘…unthinkable and the unbelievable; …the avoidable and inexcusable.’ The wrath of the nation inescapably descended upon the Court and victim. Prosecutorially, the proceedings were all over.


Given acute consideration to the gravity of the offences, may have been given a possible term of imprisonment, incarceration for 10 years. Such penalty not only reflects deterrence and society’s abhorrence of the sexual behavior of adults, but also the legislative intent in treating ‘…penile penetration of underage females’ as among the gravest of sexual acts with the innocent and vulnerable. Such, has been the unmistakable mischief aimed by Parliament. Such has always been among the protective societal considerations by public prosecutors. While the prosecutorial consciousness of Crown Counsel Shannon Jones-Gittens, appeared to have fallen asleep, that of the nation had been awakened. They were incensed over what may have been a prosecutorial decision that resides only with the office of the Director of Public Prosecutions (DPP). Their emotions had been stirred, triggering the inevitable- ‘…Public Outrage.’ Citizens strongly felt that the criminal justice system had not only failed the victim, but also the potentially vulnerable females the law seek to protect.


The moral consciences of the people had been outraged by what appeared to have been a disappointed end to pending criminal indictments against a law enforcement officer. Reasonable inferences might be drawn that the case for the prosecution had passed the ‘…Litmus Test’ for Jury trial. This is premised on three irrefutable facts; (i) …Prima facie evidence had led to the arrest; (ii) …a preponderance of evidence allowed for committal; and (iii) …Indictment of the accused suggested a realistic prospect of conviction.’ Unfortunately, the procedure followed and course of action taken, revealed an apparent deferment of a ‘…Prosecutorial Decision’ by the Crown Counsel. Not only did she exposed herself to public scrutiny, but also subjected the office of the Director of Public Prosecutions (DPP) to ministerial query.


With profound dismay, when an alleged ‘…sex predator and serving police officer’ walked freely away from the prisoners dock without facing a Jury, it was this apparent asinity that had provoked public outrage and incensed the Gaston Browne-led administration and Cabinet. Triggered by ‘…an Outrageous Decision,’ its intensity had reverberated across the nation, and after-shocks in the Cabinet of Antigua and Barbuda. It appeared that the Crown Counsel, Shannon Jones-Gittens had not taken ‘…Adequate Account’ of‘…public interests and expectations.’She may have unwittingly ignored public reaction when the accused had fled the jurisdiction to avoid apprehension and prosecution. She may also been unmindful of the public uproar and revocation of bail, when the accused allegedly sought to pervert the course of justice by visiting the Principal of a school to retrieve a cellular phone suspected to have communication data with the victim prior to the incident.


Legislators anticipated that underage females might be ‘…enticed; …induced; …lured; …procured or kidnapped and exploited to satisfy the ‘…sexual urgings and desires of pedophiles and/or predators or for monetary extortion.’ It anticipated that some may even run away from home, or may be recruited for sex rings or plotted schemes and exploited to ‘…Extort Money.’ A case in point was that of a convicted mother and a former police constable, whose sexual scheme and exploitation of two young girls, resulted in prosecution and conviction. Both are currently serving custodial sentences of four years and eighteen months respectively [ANR: October 25, 2017]. The instant case suggested that the State may not only have been seen as derailing the prosecutorial process, but also seemed to have perverted the course of justice. 

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