Questions are being raised as to why the continuous absence of key witnesses in the Rondy Jagdeo murder case was used as the deciding factor in freeing the accused when there would have been overwhelming circumstantial evidence stacked against him.
Before bringing an end to the matter just five months after it was taken before the court, legal observers say, among the things that could have been considered was that the Water Street businessman was in hiding outside the country for two months and that his wife turned up at a private hospital with a gunshot wound, hours after Kirk Davis was killed. Jagdeo would also have had to produce an alibi for the night in question.
Jagdeo, a 33-year-old resident of Alexander Village had been accused of shooting his close friend 16 times on September 3 last year. He turned himself over to the police on October 28, weeks after a wanted bulletin had been issued for him. He was charged and placed before the Georgetown Magistrate’s Courts two days later. During the preliminary inquiry, several witnesses testified but it was the apparent absence of Davis’s wife Neliffa Dookie and eyewitness Rondel Marks that affected the outcome of the case. Moments before Chief Magistrate Priya Sewnarine-Beharry freed Jagdeo on Thursday, Police Prosecutor Bharat Mangru had said that despite numerous attempts to summon the witnesses, no appearances had been made by either Dookie or Marks.
Asked to comment on the case, Crime Chief Seelall Persaud told Stabroek News that the recent trend of witnesses not turning up to court to testify is of concern to him. He said that this is a situation which reflects the society we live in. “I am saying yes (it is of concern) from the point of view that I would like to see witnesses meet that moral obligation,” he added.
He made the point that magistrates are under pressure to complete cases in a timely manner and as such can’t be prolonging them because witnesses are not coming.
Meanwhile, asked about the circumstances under which Jagdeo’s wife was shot, Persaud said the woman had told the police that she had been shot in Alexander Village. He said police investigated but “we didn’t get anywhere”. He explained that no one in the area recalled hearing a gunshot.
While noting that investigators took a statement from the woman, he said that no warhead was recovered from her injury. He said based on what police were told, the woman was at the centre of the incident which led to the shooting. The woman was under police guard while hospitalized and was arrested following her discharge. She was later released and has been off the radar since then. There are reports that she may have left the country.
Mangru had told the court that Jagdeo had learnt that Davis had kissed his (Jagdeo’s) wife on the neck one evening while in Palm Court and had allegedly gone to Davis’s home in Eccles to confront him. It was there that the shooting took place.
Jagdeo had allegedly gone to the area in a silver grey Allion motor car and later left in the same vehicle. Asked what efforts the police made in locating the vehicle which may have contained vital forensic evidence, Persaud said ranks did search but they had very little to work with because “there are thousands of cars which match that description.” He was unable to provide information on ballistics tests conducted on spent shells found at the scene.
Whether Jagdeo was known to have a licensed firearm is another issue that has not been publicly addressed.
Since the freeing of local cricketer Carlyle Barton last November under circumstances similar to Jagdeo’s, the police have come in for heavy criticism.
In response, Persaud said that the police’s case is really the state’s case. He said all witnesses have a moral obligation to the state to attend court. “The police’s muscle can only be brought to bear if the court issues an arrest warrant,” he said, adding that once that is done police will execute that warrant. That is the only action the police can take.
Asked if the police prosecutor in the Jagdeo case had requested arrest warrants for the two key witnesses, Persaud said he was unsure. This newspaper was subsequently told that the court had issued warrants. However, it is unclear how long ago this was done.
Persaud went on to state that while the prosecutor can request it, the court also has an obligation to issue the warrants if the witnesses are not coming to court.
Stabroek News has been reliably informed that the two witnesses opted not to attend court because of threats to their lives. They are now in hiding.
Asked about witness protection, the crime chief explained that this can only happen if the person volunteers and agrees to the conditions set out in the programme. At present, he said, there are persons who are in witness protection, but because there is no legislation in place for it, it has to be voluntary. “It [being in the programme] is easier said than done,” he said.
Why rush?
A legal source has questioned the decision of the magistrate to bring closure to the matter, explaining that there was circumstantial evidence which should have been looked at and could have been used to send the matter to the High Court.
“What is the rush? Too many cases are being dismissed,” the source said, explaining that sometimes witnesses turn up in court late only to be told that the matters have been dismissed. The source said that while the witnesses may be the responsibility of the police, magistrates also have a role to play as they ought to exhaust all options before closing the case.
The source said that what is happening now has been happening all the time but the media are now playing a vital role in exposing it.
According to the source, what occurred in the Jagdeo case ought to be of concern especially since the accused appeared to be so confident of his release that he had his CBR motorcycle waiting outside the court.
Now that the matter has been discharged, the depositions will be sent to the Director of Public Prosecutions (DPP) for her to decide whether the PI should be reopened.
The source noted that in years gone by the practice was to re-arrest immediately after the matter has been discharged. However, police have stopped this as lawyers often argue that it is unconstitutional and use it as a ground in Habeas Corpus proceedings. The source said that often, within an hour of the proceedings being filed, the court orders that the rearrested person be released.
The source expressed the view that the judges ought to take into consideration the seriousness of the offence when deciding on whether or not to release a person from police custody.
According to the source another way around the issue of absent witnesses can be to have the matter done by paper committal so that the statements can be tendered as evidence without oral testimony being given. However, the difficulty here is that both sides – the prosecution and the defence – have to agree to take this route.
In the case of Jagdeo, the source said, a paper committal could not have been done after the issue of the absent witnesses arose as by then oral evidence had already been taken from other witnesses. “Once oral evidence has been given. It has to continue,” the source stressed.
Confidence
A security source told this newspaper that from the beginning, Jagdeo seemed confident that “he would get off”.
The source expressed the view that Jagdeo fled the country to allow his associates on the ground to tie up all loose ends to ensure that when he was charged he would be freed. The source said Jagdeo’s wife was a critical element in the case and while she is denying any connection to the shooting, she should have been placed in the witness box.
“She was a material witness. She was the cause. What should have happened is that she should have been used in court. Let her go there and deny it. Instead she was given time to leave,” the source said while adding that everything was “nicely set up”.
Noting that what happened in this cases was “so ridiculous”, the source said that the issue of absent witnesses is becoming a regular trend.
“This is so distressing. There were no efforts to re-arrest him. Not even with a traffic offence because after all he rode off without a helmet. Could this not have been grounds to hold him?” the source asked adding that the blame is on the police.
Given the frequency of matters being discharged, the security source said, the time has probably come for the use of special prosecutors or prosecutors from the DPP’s Chamber to be used to prosecute high-profile cases in particular.
The source noted that there have been many cases where there is little evidence or evidence missing and still persons are convicted. The source cited a recent case in which several men were committed for murder even though there was no substantial evidence led against them.
