17 Feb 2011

Unqualified Donkey Droppings

Todays Newsday has Dana Seetahal sayinglast week’s killing in Penal of a thief was justifiable in the circumstances. She said yesterday that it is not in the public interest to charge anyone and that the court of public opinion, in which crime is rampant in the country, looms large.

 

“There is no basis for a DPP (Director of Public Prosecutions) to charge the villager in question because the public interest does not demand such,” Seetahal told Newsday in an interview outside the San Fernando Magistrates’ Court yesterday.

 

Now, there are a number of criteria that are rightfully used in determining whether a person is prosecuted or not. One of them is indeed whether the prosecution is ‘in the public interest’. In this case, we think Ms Seetahal actually means that popular support is with the grandfather who bounced down two bandits, killing one. So that prosecuting him will raise the ire of the nation even more.

 

The reported facts were (followed by commentary on each):

1.    The bandits had already left the scene of the crime and were some distance away.

a.    There was no suggestion that there was further threat to either the attacked family, or to anyone else; no one being in the immediate vicinity. In that context Shamshad Ali carried out a de novo aggressive act that is itself a crime.

b.    He rammed his car into the men (the actus reus). The intent (mens rea) was unquestionable. It was probable and foreseeable that such an act, in the context of rage, could predict likelihood of death to anyone struck by the car.

c.    But even if not intending to kill, the recklessness of the act could also predict that death was a foreseeable consequence. Had he not done what he did, the man would not now be dead.

2.    The men were bandits.

a.    In general the prevailing culture in T&T supports a widespread belief that because the men were bandits their rights should be suspended, and that anything done to them was justifiable. History, and the law, tells us this is not so.

3.    Seetahal reportedly said, “..criminal law allows a person to defend himself and property and it includes defending strangers as well.”

a.    This is correct in law.

4.    Seetahal continued, “..and if one’s family is being attacked...it is expected that relatives would become more incensed to protect or apprehend the criminals.

a.    This is reasonable.

b.    However, there must be a boundary between force used in self-defence and force intended to produce a separate criminal act. The latter can masquerade in the former. It is evident that the act of aggression could have caused at least grievous bodily harm - now we know it caused death!

c.    To help clear up any doubt of what is self defence and reasonable force, let us look at what the Court of Appeal in the UK said in the case of Martin v R [2001] EWCA Crim 2245 (30 October 2001).

                                      i.  When this defence is raised, the prosecution has the burden of satisfying the jury so that they are sure that the defendant was not acting in self-defence. A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. (See Beckford v R [1988] 1 AC 130).

                                     ii.  In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself. It does not matter if the defendant was mistaken in his belief as long as his belief was genuine.

                                    iii.  ...as to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a defendant to decide what force it is reasonable to use because this would mean that even if a defendant used disproportionate force but he believed he was acting reasonably he would not be guilty of any offence. It is for this reason that it was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances... It is only if the jury are sure that the amount of force which was used was unreasonable that they are entitled to find a defendant guilty if he was acting in self-defence.

                                    iv.  What has been the subject of debate is whether a defendant to a murder charge should be convicted of murder if he was acting in self-defence but used excessive force in self-defence. It is suggested that such a defendant should be regarded as being guilty of manslaughter and not murder. He would not then have to be sentenced to life imprisonment but usually instead to a determinate sentence the length of which would be decided upon by the judge, having regard to the circumstances of the offence. If it is thought that this should not be the law then the change would have to be made by Parliament.

5.    Ms Seetahal was quoted as saying that relatives would be more incensed to protect or apprehend.

a.    This is a good point FOR the prosecution of Shamshad Ali. Clearly, in the heat of the moment the incensed person cannot clearly distinguish whether his actions are right or wrong, whether within lawful limits or exceeding them and according to 4 c (iii) above, it is for a JURY to decide. Not John Public, not the DPP, and certainly not Seetahal.

We would argue that it IS in the public interest to prosecute. Not only did this man clearly do wrong, but prosecuting will have the effect of curbing other vigilantes and those bent on revenge.

 

With this decision to let him go, we may already be seeing a slippery slide into contempt for the rule of law. A Senior Council recommending the law be tossed out the window. Like we said, donkey droppings.

 

Posted by Captain Walker and Jumbie: 17/02/2011

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