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Fraser can’t duck Vindra-Coolman’s trial

By SEAN DOUGLAS Thursday, July 8 2010

click on pic to zoom in
Vindra Naipaul Coolman...
Vindra Naipaul Coolman...

JOEL Fraser, one of 13 persons accused of the kidnapping and murder of X-Tra Foods CEO, Vindra Naipaul Coolman, yesterday lost his bid to evade charges, according to a High Court ruling by Justice Vasheist Kokaram.

The judge issued a four-page summary, with his full judgment due on Friday.

Fraser had, on December 1, 2008, sought by judicial review to try to quash the decision of Chief Magistrate Sherman Mc Nicolls’ of August 6, 2008, to commit Fraser and others to stand trial in the Naipaul-Coolman case.

Previously, Fraser’s attorneys, Pamela Elder SC, and Owen Hinds, had made a no-case submission, saying the evidence of main witness, Keon Gloster, (who had recanted his earlier statements) was “manifestly unreliable”.

However, in the preliminary inquiry, Mc Nicolls had rejected Fraser’s submission.

Yesterday, Justice Kokaram rejected Fraser’s claim for an order of certiorari to quash Mc Nicolls decision. (A certiorari is a writ by a higher court for the re-examination of a matter by a lower court.).

The matter was defended by Dana Seetahal SC (acting for Mc Nicolls) who had also represented the prosecution in the preliminary inquiry.

Kokaram ruled: “The quashing of a committal on application for judicial review was not common and (is) confined to exceptional circumstances.” He said a claimant must show there was a substantial error in the committal proceedings leading to demonstrable injustice. “This is a high threshold,” said Kokaram.

“The Court must be careful not to fragment the course of a criminal trial thereby usurping the powers of the trial judge and the jury, who are the final arbiters of fact”.

Kokaram added that there was a powerful element of public interest in ensuring the course of a criminal trial should follow its ordinary routine.

“Issues of the weighing of evidence and questions of conflicting evidence in criminal proceedings should be dealt with by the trial judge, or jury...”. He said the court must also protect the rights of an accused and the integrity of the criminal justice system.

Kokaram said Keon Gloster’s statement was prima facie (“at a first glance”) admissible evidence, and any alleged procedural defect in its submission was “so trivial, or harmless that it could not reasonably result in any adverse consequence to the accused”.

The judge said much evaluation could be left for the trial. “The ease with which the witness (Gloster) distanced himself from the statement would also properly be the subject of directions by, or scrutiny of the judge and/or jury.” He said there was no re-examination of Gloster, and this was reserved for the trial, where there would still be the chance to treat Gloster as a hostile witness. “The entire picture therefore of the inconsistencies in the evidence, or the reliability of the witness was yet to be pieced together, or properly assessed before the ultimate trier of fact. I would hesitate in these circumstances to quash this committal”.

Kokaram said that while a judicial review court was keen to protect the rights of citizens facing the criminal process, the court was equally vigilant not to abridge a criminal trial except in the clearest case. Ultimately the claimant had failed to make his case, (that Gloster’s evidence was inadmissible ,or unreliable), he added. Kokaram said, “The evidence in reality consists of a reluctant witness who has recanted in his cross examination...In any case it cannot be said at this stage that the evidence to support the committal was manifestly unreliable. The claim for judicial review is dismissed”.

In an aside, Kokaram said the witness may be subject to appropriate directions or investigations by the trial judge.

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