Seventy-year-old businessman Bertram Clarke, who was convicted of plotting with two then 15-year-old schoolboys to murder his 74-year-old wife, Floris, was freed this month after the appellate court ruled that a substantial miscarriage of justice took place in 2016 at the murder trial.
Twenty-nine-year-old Arthur Robinson, one of the then schoolboys, was also released.
Floris was found at the couple’s home in Watt Town, St Ann, on the night of October 26, 2007 with her head bashed in and her throat slashed. She died two days later in hospital.
The court found in particular that Robinson, who was a minor when he was taken into custody, was mistreated by the police during his detention. He was unfed for several hours and lowered multiple times without protective gear into a pit latrine to search for the alleged murder weapons.
“The fact he was a minor was, in the main, either ignored or exploited by the police and this resulted in several breaches of the law and the right accorded Mr Robinson under the Constitution,” the court found, adding that such breaches resulted in Robinson’s case not having been fairly put before the jury.
The court said without the impugned material, the case against Clarke and Robinson was negligible.
UNFAIR TRIAL
“The cumulative effect of the procedural errors and other weaknesses in the prosecution’s case, in particular, amounted to a trial that was unfair and convictions that were unsafe.
“What transpired at the trial was unorthodox and it forced me to second-guess my own knowledge of criminal law and criminal procedures,” attorney-at-law Oswest Senior-Smith, who represented Clarke at his trial, told The Sunday Gleaner last week.
“The prosecution in that trial ran amok and enjoyed unchecked privileges during the trial and took the court into making egregious errors resulting in that elderly gentleman spending years in prison. This judgment by the Court of Appeal has restored my confidence in the legal principles which I thought I knew and, of course, has vindicated me in my belief that a grave injustice had been done,” said Senior-Smith, who disclosed that he had contemplated leaving court advocacy because of the injustices in the trial.
Clarke and Robinson were convicted by a jury in the Home Circuit Court in March 2016. They were sentenced in April 2016 to life imprisonment. The judge ordered that Clarke should serve 25 years before he could be eligible for parole, while Robinson should serve 21 years before parole.
Emanuel Newland, the other then 15-year-old schoolboy implicated in the murder, had pleaded guilty in 2011 and was sentenced to 15 years’ imprisonment. He was also called as a prosecution witness at the trial of the two men, but said he did not know them and denied giving statements to the police implicating the men.
The prosecution’s case was that the schoolboys killed Floris Clarke pursuant to a murder pact with Bertram Clarke because the relationship with his wife had broken down and he wanted to bring his mistress, who was the mother of his two young children, to live at the matrimonial home.
WRITTEN CAUTION STATEMENT
Considerable reliance was placed by the prosecution on a written caution statement and other out-of-court statements in which Robinson claimed that it was Clarke who had sent him and Newland to kill his wife and burgle the house.
However, Robinson repudiated the caution statement in an unsworn statement from the dock and said he knew nothing about the killing. He explained in his caution statement that he was at Clarke’s house when he heard the couple quarrelling inside. There was a crashing sound and Clarke emerged from the house with some items, including a baton, which he gave him to dispose of in a pit toilet on a school compound and threatened him.
Clarke, in his defence, said he was not involved in his wife’s murder and was not at home when she was attacked, adding that he and his wife had a good relationship.
Attorney-at-law Gillian Burgess, who represented Clarke on appeal, and attorney-at-law Leroy Equiano, who represented Robinson, had filed several grounds of appeal.
Burgess argued that Robinson’s trial was unfair because the trial judge failed to give the jury directions on how to treat hearsay evidence. She said the judge misdirected the jury as to the value of Robinson’s unsworn statement and failed to tell the jury that the unsworn statement could not be used against Clarke.
The Court of Appeal found that the failure by the judge to properly direct the jury as to the value – or lack thereof – of Robinson’s unsworn statement in respect of Clarke meant that there was a real risk that Clarke was exposed to adverse findings by the jury as a result of the unsworn statement.
The court held that Clarke was not afforded a fair trial and said the Crown was correct to have conceded that point.
Equiano argued that the judge erred in admitting Robinson’s caution statement into evidence because Robinson was a child when the caution statement was taken and there were breaches because his parents were not present, he did not have the benefit of legal representation, and the justice of the peace (JP) who was present did not speak to Robinson in private before the statement was given. He said neither the JP nor the police officers made any enquiry of Robinson regarding his well-being and comfort.
The court ruled that in all the circumstances, it was difficult to see how the prosecution could maintain its position that Robinson was treated fairly and that the caution statement should have been admitted into evidence. The court upheld Equiano’s submission that the evidence from Newland’s statement was very incriminating and very prejudicial to Robinson and should not have been placed before the jury.
The attorneys for the appellants argued that it would be unfair to order a retrial because of the long delay in having the case tried, the deficiencies in the case and the fact that the appellants were in prison for such a long time.
REQUEST FOR RETRIAL
Attorney-at-law Kathy Pyke, who represented the Crown, had asked for a retrial if the court were not minded to apply the proviso. She referred to the seriousness of the offence and the fact that the prosecution did not have any evidential hurdles in relation to the appellants.
In response, the court said that to apply the proviso (allow the convictions to stand) would result in a serious miscarriage of justice to both men.
In ruling in favour of the appellants, the court said: “We have already found that the admission of certain directions to the jury by the learned trial judge resulted in an unfair trial for the appellants. In Mr Robinson’s case, the learned trial judge misdirected the jury on the use that could be put to Mr Robinson’s unsworn statement and the out-of-court statements made by him. Specifically, she failed to tell the jury that Mr Robinson’s unsworn statement and out-of-court statements, which he made, could not be used against Mr Clarke. She also failed to give adequate and appropriate directions in relation to the witness statements of Mr Newland. These errors resulted in significant unfairness and prejudice to Mr Clarke. They also had the effect of compromising his defence, exposing him to adverse findings by the jury and prejudicing his chances of an acquittal.
“If the inadmissible evidence had been excluded, then the prosecution would only have been left with the evidence of family members and acquaintances. Such ‘circumstantial evidence’, which was largely speculative, might have revealed a husband who displayed a lack of affection, attention, care and commitment to his wife, but those are not the ingredients of murder or a pact to commit murder, and a jury properly directed would be unlikely to convict on that evidence. In the circumstances, it cannot be said that a substantial miscarriage of justice did not result,” , “ the court – comprising Justice Marva McDonald-Bishop, Justice Almarie Sinclair-Haynes and Justice Marcia Dunbar-Green ruled – adding that there was no compelling reason to order a retrial.
The court also pointed out that when the residue of admissible evidence was considered together with how much time elapsed since the incident in 2007, the time the men spent in custody, the stance of the confessed killer Newland that the appellants were not involved in the killing, the judges said they concluded that a retrial would not be appropriate.