Another Two Cents on whether Jamaica should abolish a trial by Jury

Fresh in the minds of those legally observant and internationally aware was the recently concluded Oscar Pistorius murder trial that was heard by Justice Thokozile Masipa, of the South African High Court along with her two assessors. masipa and two assessorsThe first thing that caught the fixated eyes of those looking on (particularly the legal observers) was that there was no jury. The jury represents the objective eyes and ears of citizens actively assisting in the administration of justice. The case reopened the age old debate of whether laymen who are not learned in the law should be able to make determinations and pronouncements on the guilt or innocence of a man or whether a learned judge seated at the bench from time immemorial and completely desensitized should be allowed to solely make pronouncements on the guilt or innocence of a man.

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CCJ Corner: CCJ Rules In Gas Station Dispute

Feizal Mohamed Amin v Guyana Oil Company Ltd [2014] CCJ 10(AJ)

By Kara Graham: Norman Manley Law School

Mr. Feizal Mohamed Amin (‘Mr.Amin’), a gas station owner, had an agreement with Guyana Oil Company Ltd (‘Guyoil’), for Guyoil to supply him with petroleum and petroleum products. Guyoil claimed that between September 5 and September 28, 2005, Mr Amin failed to pay them for goods delivered to the value of GUY$101,280,423.

Mr Amin argued that he had paid all his debts to Guyoil and set out to challenge the accuracy of the alleged debt. In response Guyoil produced a letter written and signed by Amin in which he admitted that he owed Guyoil the sum of GUY$97,609,000 and would pay that sum as soon as possible. Mr Amin readily admitted that he did in fact write this letter, but he stated that it was written as a result of ‘economic coercion’. He argued that he was intimidated into signing the letter because Guyoil indicated that he would have to confess to some indebtedness if he were to continue receiving their products.

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A Review of the Oscar Pistorius Trial

Lenroy Stewart

Lenroy Stewart

INTRODUCTION

The Oscar Pistorius trial was one of the most publicized trials in recent times. This article reviews the decision of the South African court and engages in a brief comparison between the South African and Jamaican criminal justice system.

THE FACTS OF THE CASE

On February 14, 2013 Oscar Pistorius shot and killed Reeva Steenkamp.[i] He fired four shots into his bathroom where the deceased had been locked inside. He was subsequently charged and tried for murder and three unrelated gun offences.

PROCEDURAL BACKGROUND

Chief Magistrate Desmond Nair granted bail to Pistorius after concluding that he was not a flight risk.[ii] Another significant pre-trial event was the application by several media houses seeking permission to broadcast the entire trial. In his judgement Mlambo P who heard the application noted that “The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand and the quest by the media and press to participate in that system on the other hand”[iii]. He noted that the two rights which must be balanced were “the rights of an accused person and the prosecution to a fair trial on the one hand and the freedom of expression rights of the media as well as the open justice principle.”[iv] Mambo P ultimately concluded that the entire trial could be broadcast live via audio and that certain parts of the trial could be broadcast live via television, subject to restrictions[v] to minimise any possible impact on the trial proceedings.

THE ISSUES

The issues as framed by the trial judge was whether at the time the accused shot and killed the deceased he had the requisite intention, and if so, whether there was any premeditation.

DECISION

pistorius

Pistorius was found guilty of the culpable homicide of Steenkamp and reckless endangerment for discharging his firearm at a restaurant. He was acquitted of the other charges as the prosecution failed to prove them. Pistorius received a prison sentence of a maximum of five years for culpable homicide and a concurrent three-year suspended prison sentence for the reckless endangerment.

REASONS FOR THE DECISION

south-africa-pistorius-trial from CBC

Masipa J.

The judge found that the accused was a poor witness[vii], however that ipso facto could not be determinative of his guilt or innocence. The judge also noted that the evidence in respect of the murder charge was purely circumstantial. The simple explanation from the accused was that shooting the deceased was a genuine mistake, as he thought he was shooting at an intruder behind the toilet door. The judge reasoned that viewed in its totality the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation in her words “the intention to shoot however does not necessarily include the intention to kill, Depending on the circumstances of each case an accused may be found guilty of dolus eventualis or culpable homicide.”[viii] The Judge though not finding him guilty of murder was of the view that the accused acted too hastily and used excessive force in respect of the shooting as she said “There is no doubt that when the accused fired shots through the toilet door, he acted unlawfully.”[ix] In the circumstances, she held that his conduct was negligent.

ANALYSIS

Masipa J in the Judgement noted that “The onus of proof in a criminal case is discharged by the state if the evidence establishes the guilt of the accused beyond reasonable doubt.  The corollary is that he is entitled to be acquitted … if it is reasonably possible that he might be innocent.[x] It follows that since the state did not prove beyond reasonable doubt that the he was guilty of murder, he could not so be found. In using the reasonable man test the judge found that a reasonable person in the same circumstances as the accused would have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die and so accordingly found Pistorius guilty of culpable homicide. I would argue that on the totality of evidence presented the Learned Judge made the correct decision.

 

COMPARISON BETWEEN THE SOUTH AFRICAN SYSTEM AND JAMAICAN CRIMINAL JUSTICE SYSTEM.

gavel

Perhaps the most significant difference seen was the fact that there is no Jury system in South Africa as this was abolished during the period of apartheid.[xi] To compensate for the lack of a jury system the South African legal system however allows the judge to select lay assessors[xii] as she did in this case. The lay assessors sit with the judge and together they comprise the tribunal of fact. A clear benefit in using this system is that in all criminal cases there will be a written judgement, clearly setting out the findings of facts and law; this presently does not happen in jury trials in Jamaica. I am of the view that this would be of great to the Jamaican public.[xiii] Finally parts of the trial were broadcast live on Television this is something that is not done in Jamaica. I would not however suggest the implementation of such a bold step. The televising of trials, especially murder trials, would be highly sensationalized[xiv] and counterproductive to the interests of justice in Jamaica.

CONCLUSION                               

Despite the ruling the dust has still not settled, Masipa J has ruled that the prosecutors can appeal against the acquittal of the murder charge[xv]  and many persons have voiced opinions to the effect that the sentence was too lenient. Irrespective of whether you agree with the decision of the learned trial Judge, one can certainly agree that the South African legal system acquitted itself well and stood up to intense international scrutiny. The South African Legal system as is to be expected has some differences when compared with the Jamaican legal system. I find their approach to the criminal trial particularly attractive in light of the many problems we have with our own jury system; I would commend this approach to framers of our judicial policy, but I can already foresee defence counsel et al raising strong objections to such a proposal. Whatever we decide we must remember that “Not only must Justice be done; it must also be seen to be done.”[xvi]

Lenroy Stewart is a First Year student at the Norman Manley Law School

            

[i] Steenkamp was his girlfriend

[ii] Dolak and Kanani, ‘Oscar Pistorius Granted Bail in Murder Case’ (abcnews.go.com/ 2014) <http://abcnews.go.com/International/oscar-pistorius-granted-bail-murder-case/story?id=18563714&gt; accessed 25/12/2014; The judge attached stringent bail conditions which included relinquishing his firearms, passports, daily police reports and being confined to the Pretoria area

[iii] Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, In Re; S v Pistorius, In Re; Media 24 Limited and Others v Director of Public Prosecutions North Gauteng and Others [2014] 2 ALL SA 446 (GPPHC)

[iv] Ibid

[v] The trial judge retained a discretion to order that parts of the trial not be broadcast live

[vi] The Judge noted that a possible reason for some of the witnesses getting their facts wrong was the fact that this case attracted such a great amount of media attention. Several witnesses admitted to following the news relating to the events of 14 February 2013.

[vii] During evidence in chief he seemed composed and logical, while giving his version under cross-examination he lost his composure.

[viii] S v Pistorius (CC113/2013) [2014] ZAGPPHC 793

[ix] Op cit

[x] Op cit

[xi] Susannah Cullinane, Nick Thompson and Kelly Phelps, ‘Oscar Pistorius trial: 9 things to know’ (cnn.com/ 2013) <http://edition.cnn.com/2013/02/22/world/africa/pistorius-legal-q-and-a/index.html&gt; accessed 25/12/2014

[xii] Lay assesors are usually persons skilled in the law such as retired judges , retired lawyers or law professors

[xiii] Or at least helpful to law students

[xiv] The Mannat and Tivoli commissions come readily to mind

[xv] Pumza fihlani, ‘Oscar Pistorius case: Judge Masipa allows appeal’ (http://www.bbc.com/ 2014) <http://www.bbc.com/news/world-africa-30408424&gt; accessed January 19 , 2015

[xvi] R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256

CCJ Corner: CCJ Says No To Serial Litigation

Clyde Brown v Michelle Moore Griffith, Robin R. Moore, Basil R. Moore [2013] CCJ 6 (AJ), [2013] CCJ 12(AJ), [2014] CCJ 4 (AJ)

By Ivy O. Pitts: Norman Manley Law School

The case of Clyde Brown v Moore illustrates that an appeal does not mean ‘ask until you get what you want.’ Instead, in applications for special leave, the resources of the Caribbean Court of Justice (CCJ) are to be used by litigants who have a case that has some prospects of success.

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CCJ Corner: CCJ dismisses academic appeal

The CCJ Corner is an initiative of the Caribbean Court of Justice geared towards educating and informing the public of the court’s decisions by way of pithy, dynamic and easily understood case summaries. The summaries are written by students of the law schools throughout the region including students of the Norman Manley Law School. The Litigator will, from today, share those summaries.

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Cyber Law in the Caribbean (Part 2)

Shari-Ann Walker

The second part of this paper focuses on efforts being made by particular Commonwealth Caribbean territories in their approach to tackling cybercrime, the impact of cybercrime in the region and recommendations for the region in dealing with cybercrime.

Undertakings made by the Commonwealth Caribbean region in addressing cybercrime

Dominica has made substantial efforts in keeping the spotlight on cyber security and cybercrime in the last few years by tabling a legislative review workshop on cyber security in April 2014. This sought to assess whether their existing legislation was in compliance with the International Convention on Cybercrime. This workshop was also an initiative towards the development of a national cybercrime strategy and the establishment of a national cybercrime policy.[i] This effort is in accordance with HIPCAR’s objective of ultimately having internationally compliant legislation to effectively address cybercrime.

Barbados currently has computer legislation known as the Computer Misuse Act. However, there have been no amendments to this Act since its enactment in 2005 and as such this legislation is woefully outdated since the particular area it seeks to address, that is cybercrime, is constantly changing and evolving and therefore new types of cybercrime and new ways of committing cybercrime offences envisioned by this legislation have arisen since the enactment of this Act. The offences currently addressed by this Act include malicious communications,[ii] illegal access[iii], interference with data[iv] and with a computer system and child pornography[v]. Except for child pornography it is submitted that the provisions creating the offences under this Act are too broad and therefore leave too much room for argument and uncertainty as to whether an offence committed fits within the scope of the particular provision. With the proposed legislation under HIPCAR, for instance, like the Barbados Computer Misuse Act, it also includes the offence of illegal access and interference with data, but as one offence. However, it also goes on to identify other offences which deal with illegal access and interference with data such as data espionage, computer related forgery and computer related fraud. Therefore it is argued that HIPCAR has specifically addressed particular cybercrime offences with the intention that such offences will fall into the scope of the proposed legislation, making it clearer and easier to charge an offender with these offences.

barbados parliament

The Cybercrimes Act of Jamaica is more current than its Barbadian counterpart, having come into effect in 2010. The Jamaican legislation provides specifically for offences committed by corporate bodies[vi] and states that the Court has the power, in addition to any other punishment the Court may deem appropriate, to order compensation to the party affected by the defendant’s actions. [vii] This provision provides increased protection and an additional remedy to the aggrieved party. However, this Act could be improved by specifying the offence it is seeking to create which reflects the approach taken in HIPCAR. This would allow more guidance as actions would be an offence attracting a criminal charge.

The Parliament of Trinidad and Tobago is in the process of hearing the Cybercrimes Bill and the Cybercrime Security Bill. One welcomed contemporary aspect of the Bill is that it seeks to make cyber-bullying a crime. The proposed section states the offence as “harassment through the use of electronic means with the intent to cause emotional distress for both adults and children.” [viii] The Bill considers the reputation of the affected person and any person found guilty of this offence would be subject to a fine and/or a term of imprisonment. This proposal wholeheartedly reflects some of the issues and concerns young persons face today enduring attacks on social media sites and the Internet. The Minister of National Security, Gary Griffith, in announcing the Bill, also cited the need to protect children from the dangers associated with Internet use, increase of website hacking and other cybercrimes among the overall need for Cybercrime legislation. [ix]

cybercrime_0

Impact of Cybercrime on the Region

In the Commonwealth Caribbean much like the rest of the world, cybercrime threatens the livelihood of the largest companies, any business and any individual. It has the potential to negatively impact the socio- economic viability and stability of a country and can affect any electronic system. As acts of cybercrime continue to grow, cyber criminals will become attracted to jurisdictions which are lacking cybercrime or computer crime legislation or where legislation is inadequate or too outdated to properly address new and more advanced cyber attacks. This makes the Commonwealth Caribbean a prime target.

The most severe cyber attack suffered by Barbados to date, was in 2013, when at least two Bulgarian nationals stole over BDS $300, 000 (US $150,000) from several ATMs on the island, affecting countless individuals.[x] Interestingly, they were not charged under the Barbados Computer Misuse Act but with money laundering and intent to commit theft.[xi] There are several reasons why these offenders may not have been charged under this Act. It is submitted that one of these reasons as highlighted earlier is that the offences committed by these persons may not have fit comfortably under the provisions of the Computer Misuse Act thus creating confusion or uncertainty.

In Jamaica, credit card and debit card fraud cost commercial banks over J$34 million (US$300,000) during the first 5 months of this year. In 2010, Scotiabank recorded losses of J$150 million (US$1.5 million) due to credit card and debit card fraud. [xii] In 2013, CIBC First Caribbean suffered a data breach when hackers were able to access the bank’s records which potentially exposed the personal information of its customers. This led to concerns of the possibility of fraud. [xiii]The island’s government websites also recently suffered from at least 10 attacks, weeks apart, which prompted the Government to implement a series of cyber security measures in a bid to prevent further attacks[xiv]. Measures included a formal criminal investigation by the island’s Forensics Cybercrime Unit and Jamaica’s Constabulary Force as well as technical assistance from international agencies, in particular the Organisation of American States (OAS) to establish a National Computer Incident Response Team in the island.[xv]

In Trinidad & Tobago, there have been acts of ATM fraud[xvi], credit card security breaches[xvii], and multiple hacks on governmental websites, including Parliament’s website,[xviii] within the last 4 years. The Minister of National Security, Gary Griffith declared earlier this year that many of the island’s infrastructures, such as online banking, financial networks such as online government services, oil, gas and petrochemical structures, water stations, electricity systems, air transport and public ground transportation were all vulnerable to acts of cybercrime.[xix] He urged that strategies be implemented to address the risks associated with Internet use.

Emerging Cyber Issues

Lastly, a growing issue which has been a cause for concern within the last two years has been the act of intentionally uploading nude images of a person on the Internet, without their consent and intending to cause that person harm. This is also a form of cyber-bullying which mostly tends to target and cause harm to females. Earlier this year, a disturbing social trend emerged on the popular social media site Twitter, called “#twitterpurge,” which was aimed at “exposing” nude pictures of persons without consent. This trend unfortunately targeted females[xx] and the offenders of these acts tended to be men with whom these females previously had relationships. There must be laws in place which protect women and teenage girls in particular, from these foul actions.

Recommendations

It is imperative that the region continues to work towards the overall objective set out by HIPCAR that is harmonized legislation, regionally and internationally, as this is the most effective way to adequately tackle cybercrime. There has not been enough discussion, in the last few years, between regional leaders towards making harmonized legislation a reality in the near future.

Secondly, in countries where legislation already exists, legislatures should make the effort to update such laws every five years to ensure they remain effective as Information Technology continues to rapidly change. Therefore, in the case of Barbados, the Computer Misuse Act which was enacted almost ten years ago is in dire need of amendments to reflect current cybercrime concerns. Additionally, countries should not wait until they are devastated by new cybercrime threats before taking meaningful steps to update legislation or create new policies.

In relation to current legislation, such as the Jamaican Act highlighted earlier, future Acts and or amendments should aim to provide more clarity when seeking to create cybercrime offences similar to the approach taken by HIPCAR.

cyberbullying

New cyber threats such as cyber bullying, which Trinidad’s proposed Cybercrime Bill seeks to make an offence, is applauded, as it has been recognized by that country that cyber-bullying is a very real and growing issue of concern, especially for children. Therefore, it is highly recommended and hoped that other Caribbean countries follow Trinidad’s example and also incorporate these offences into their legislation. Furthermore, in addition to cyber-bullying provisions, another provision which specifically speaks to the intentional or malicious, unauthorized uploading of nude images of a person with the intent to cause harm to their reputation, should be created under cybercrime legislation or, cyber-bullying provisions should be expansive enough to encompass this offence.

Shari-Ann Walker is a First Year student at the Norman Manley Law School

[i] http://technewstt.com/ttcybercrime/

[ii] Section 14 Barbados Computer Misuse Act

[iii] Section 4

[iv] Section 5

[v] Section 13

[vi] Section 11 Jamaica Cybercrimes Act

[vii] Section 12

[viii] http://www.newsday.co.tt/news/0,196225.html

[ix] Ibid.

[x] http://www.stabroeknews.com/2013/news/regional/10/13/bulgarians-charged-in-barbados-with-money-laundering/

[xi] Ibid.

[xii] http://www.jamaicaobserver.com/business/Scotia-moves-to-further-reduce-credit-debit-card-fraud_18079928

[xiii] http://www.stabroeknews.com/2013/news/regional/03/20/firstcaribbean-bank-records-hacked/

[xiv] http://www.jamaicaobserver.com/news/Govt-beefs-up-cyber-security-after-website-attacks

[xv] http://jamaica-gleaner.com/latest/article.php?id=57285

[xvi] http://www.stabroeknews.com/2012/archives/07/07/atm-fraud-hits-tt/

[xvii] http://www.stabroeknews.com/2013/news/regional/03/08/tt-banks-on-alert-after-credit-card-security-breach/

[xviii] http://www.guardian.co.tt/news/2012-04-23/parliament-hacker-warns-get-better-security; http://technewstt.com/sautt-website-fbi/

[xix] http://www.newsday.co.tt/news/0,196225.html

[xx]http://www.slate.com/articles/double_x/doublex/2014/07/_twitterpurge_is_revenge_porn_we_need_laws_to_stop_the_non_consensual_posting.html?wpisrc=obnetwork