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The Caribbean Court of Justice sat in Jamaica for three days from March 4 – 6, 2013 to take the evidence of Jamaican witnesses in the Shanique Myrie case. Myrie claims to have been discriminated against by the government of Barbados when she tried to visit the country in March 2011.

The claimant, Myrie, called six witnesses, while the government of Jamaica, an intervening party, called four witnesses. It is great that the public is so interested in this case, but here are a few points to note. 

1. The part of the evidence to which the public has been exposed is that which has emerged under cross examination. This is because the witnesses state their account of what happened in written statements which are then tendered into evidence to stand as their evidence in chief. In other words, you don’t see, as you would in a criminal trial, the witness verbally giving his or her account. This means that the public generally does not know the entirety of the witness’s account, its length, how many details were provided, or the depth of the account. All we have heard are the parts which the opposing attorney chose to highlight.

In other words, when we hear an attorney in cross-examination – and the same thing will happen when the court travels to Barbados – hammering away at one or two or several details – at this stage it is very difficult to say whether a witness has been “discredited” or not. What are the key issues in the case? In this case, a key aspect of the evidence is the cavity search, which the government of Barbados is denying ever took place. Was Myrie shaken on that critical aspect of the testimony? This was not an aspect dealt on in any detail in cross examination so the public cannot really make any informed view of that issue. That, of course, will be for the judges to decide.

Myrie’s witness statement was 18 pages long. The public was therefore not exposed to the vast majority of her evidence and as a result cannot at this point make any realistic or informed assessment of her evidence as a whole.

2. It is a truism in law that memories fade. It would always be unlikely for any witness to remember every detail of a matter that took place some time ago. That would be taken into consideration in assessing credibility of a witness.

3. This is not a domestic court. It is an international court with no jury, but with seven experienced judges hearing the case. The difference is helpfully explained in a rebuttal filed by Jamaica’s Deputy Solicitor General Dr. Kathy Ann Brown in response to an application by the attorneys representing Barbados to strike out the statements of three of the Jamaican witnesses. She stated that:

“International courts generally allow parties the freedom to submit any evidence they wish in order to prove the facts necessary to establish their respective cases. It is submitted further that an international court determines the relevance , materiality and weight of the evidence offered by any party and in appropriate circumstances may generally only exclude evidence if it is duplicative, defamatory or obviously irrelevant.

In contrast to the treatment of evidence at the national level …in international cases rules of procedure that govern the submission of evidence and its evaluation are less restrictive.”

 In other words, a lot of evidence will be admitted that may not have been admitted under the rules of evidence in domestic courts, and it is for the judges to sift through the evidence and make their assessments.

As  a result, one of the attorneys explained to me that the frequent objections which would normally be made in domestic court were not made, as they were allowing the court to hear all the evidence being presented. This would be why one concerned observer commented that the Barbadian attorneys were walking all over our witnesses.

4. I have also been disturbed by some of the disrespectful comments about one of the witnesses who told the court that he could not read or write. The suggestions I have heard (from Jamaicans) are that he should not have been called to give evidence. The witness has given his account of how he was treated. Why should he be denied the opportunity to do so because of his inability to read?

The courtroom can be an intimidating place for many people. Consider the lawyers flitting around in black robes – the imposing bench of, in this case, seven judges sitting on high, the way in which lawyers talk  (when in court) which almost inevitably does not sound anything like the way normal people talk, and in this case, the thick, to the ears of many of us,  Bajan accent in which the lead attorney was questioning the witnesses. And last but far from least, there was the frustrating refusal of almost everybody in this case to actually speak into the microphone – judges and attorneys alike. Add to that the fact that a witness’s natural language may have been Jamaican patois, not English. Any of these factors could have contributed to an inability to properly understand the questions being asked. Let’s be a little more sensitive in our assessment of our fellow Jamaicans.

 The upshot? Don’t jump to conclusions and pronounce the case won or lost just yet. This could be a landmark case in the region. I have no doubt that will be reflected in the ruling.

 

 

 

 

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