The Appeal Court on Monday instructed its registrar to request from the Supreme Court an audit of matters awaiting retrial dating back six years.

The instruction was given as the Appeal Court, in opening the first leg of a five-day hearing to determine whether entertainer Vybz Kartel and his three co accused are to be retried or acquitted for the 2011 murder of Clive “Lizard” Williams, admitted that it has satellited several cases to the Supreme Court for retrial and is clueless as to their progress.

Justice Marva McDonald-Bishop made the ruling after hearing the preliminary response of defence counsel and preliminary objections of the Crown on the content of the affidavits of all the accused.

The accused, in their affidavits, expressed uncertainty about the speed with which they would be retried if the court were to make such an order.

The Appeal Court hearing follows the Privy Council ruling in March quashing the murder convictions of the men. The apex court had, however, ordered the case remitted to Jamaica’s Court of Appeal for it to decide whether a retrial is necessary for Kartel — whose given name is Adidja Palmer — and his co-accused Shawn “Shawn Storm” Campbell, Kahira Jones, and Andre St John.

Before Monday’s proceedings, however, lawyers representing Kartel, Campbell, and St John on May 13 filed a writ of habeas corpus application in the Supreme Court in downtown Kingston seeking their release, arguing that there was no order by the apex court for the continued detention of their clients and as such they should be released. That application was, however, denied.

Justice McDonald-Bishop had initially mulled whether counsel on both sides should be instructed to find out the number of cases lined up in the Home Circuit Court for retrial and advise the Appeal Court as to the length of time a case such as the one now being considered would take to be retried.

McDonald-Bishop, who heads the panel comprising justices Paulette Williams and David Fraser, was at pains to point out that the State is being hit by a number of lawsuits on the grounds of breach of constitutional rights from matters which have not been tried in reasonable time.

“If the court was to send it back we have to set the time and place if it is to be retried and we would have to know, if the case is to be retried, how long these persons would have to wait, because delay is now an issue. We know we have referred several cases back to the Supreme Court for retrial, so we must have an idea of how the Supreme Court is dealing with these retrials. Because if these defendants are to be retried, we have to know when a likely trial date is to be because it is relevant. The delay point is critical in the case, we throw that out [there] now,” McDonald-Bishop said.

“We know we have referred several cases back to the Supreme Court for retrial… the delay is critical in the case… it is critical to get an audit of the cases awaiting retrial. If we find that we send matters back 10 years and still no retrial… we see the State now being hit with several lawsuits about constitutional rights being breached,” she stated.

̏ We tend to have a way to just come and say retrial on the Crown’s position that all witnesses are available, we are ready to proceed, and if it goes back over there and we see these matters are still in the system… I think it’s only fair. We have to do an audit for cases sent back for retrial by the Supreme Court going back six years… the court has to know when it is likely the trial dates are being fixed. We don’t know. And then you have retrial matters which they say should get priority. We need to know how many cases are for retrial on the list, the status, the reason they are there and the disposition dates,” the Appeal Court judge said.

However, a further request by Acting Director of Public Prosecutions (DPP) Claudette Thompson for the registrar to also indicate in that response which of those cases were affected by issues such as the COVID-19 pandemic, the availability of counsel, the availability of witnesses, and whether those cases will be prioritised and allowed to leapfrog matters was not accommodated by McDonald-Bishop.

“I am just saying to you, and this is a concern of the court, the first thing that should guide counsel, we are to look into whether a retrial should be ordered or the men set free. The prosecution should know what it should do to satisfy the court about, the defence should know what it should satisfy the court about. The court should not be here seeking to do its own investigations, we should know the state of our own justice system, which is why the Privy Council sent the matter back to us. The Crown is not going to send the court on any investigation… the most we are doing at this juncture is to get a list of the cases over there that we have sent back in the past six years for retrial and where they are today. We will not be the ones to delve into the reasons for you, that is for you,” McDonald-Bishop stated.

In the just over three-hour-long sitting, the court painstakingly waded through the affidavits presented by the defence.

The Crown, in its preliminary objection, argued that “the different persons who have provided us with affidavits have not spoken to facts” making it so that some statements amounted to “hearsay”.

“We are mindful of the limited jurisdiction of this court as it relates to the order of the Privy Council. The single issue is retrial, and so any fact that does not go to retrial we ask the court to say is irrelevant.

“Additionally, with the remit this court has, as it related to retrial, the appellants ought not to be allowed to re-litigate by naming new grounds of appeal that were not raised here or at the Privy Council and, following the rules, pleading or argument ought properly not to be included in an affidavit and legal submissions. So we are saying those are the bases for our preliminary objection,” Thompson said at the outset.

During the weeding-out process which ensued, several of the points raised by the appellants in their affidavits, as well as those raised by relatives of the appellants, were either allowed, abandoned, or partially struck.

Campbell, in his affidavit, expressed among other things, doubts about the strength of the Crown’s case which he described as “lacking”, while declaring that he was wary about the impact of the publicity surrounding the trial on the new proceedings.

A relative of Campbell, in her affidavit, said given the impact of social media commentaries and bloggers on the perceptions of Jamaicans, “to allow the State another bite at the apple would be a grave injustice”.

“Whatever is left of my uncle’s life, that he be allowed to spend with his family,” the individual said.

A family member of St John, in her affidavit, said media interviews given by the DPP were problematic to the fairness of any further process, adding that the publicity of the trial was “devastating to the family” and her relative’s right to a fair trial.

“I have seen many social media posts from bloggers like Sir P who do not conform to any of the traditional norms of journalism, who have widespread viewership, who espouse the wildest theories which will undoubtedly influence many Jamaicans… I have met thousands of Jamaicans who do not know me… many persons say my brother should dead a prison,” that affidavit read.

Furthermore, the relative said the family was broke and did not have the resources to foot the bill for a new trial.

Palmer, in his affidavit, said he was the “sole breadwinner” for his family and contended that he had been subjected to a “defective trial” while stating that a new trial would affect his ability to continue to earn.

He further complained of the emotional toll of the situation on him while stating that the conditions of detention had robbed him of his human dignity.

Furthermore, Palmer said he was of the opinion that the delay in charging him and his time in custody breached his constitutional rights. He also said no one assisted him in documenting his recollection of the sequence of events and as such he doubted his memory. He further fretted that he could be branded by the prosecutor as a liar because of this.

“It is difficult, after 12 years, to instruct counsel. My defence would be embarrassed. It would not be fair to me after all this time without my witnesses,” the entertainer said, adding that his constitutional rights are being breached by the prison conditions and his continued detention while on appeal.

His son, Adidja Jaheim Palmer, in his affidavit, said his father’s health would not allow him to survive a new trial.

“I also believe that if the evidence used at the first trial is used again in a retrial it would be very prejudicial to my father,” he said, adding that his father’s attorney had “advised me that that even if an application was made to poll potential jurors it would be impossible to find unbiased jurors”.

The other accused, Kahira Jones, said he did not have money to pay for a new trial.

In April 2014 Kartel was sentenced to life in prison, with eligibility for parole after serving 35 years of his sentence. His co-accused were also handed life sentences, with Shawn Storm and Jones being eligible for parole after serving 25 years, and St John being eligible after serving 15 years.

In April 2020, following an appeal, the men’s parole times were reduced by two-and-a-half years each.

In September that same year the men were granted conditional leave to challenge their murder convictions before the Privy Council.

The matter resumes this morning at 10:00 when the court should begin hearing the substantive arguments from the attorneys in the matter. The hearings are expected to conclude on Friday.