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THE two men charged with the brutal killing of six-year-old Sean Luke Lum Fai in 2006 will go on trial as the judge in their judge-alone case has dismissed an application by one of them to permanently stay the prosecution against him.
In dismissing the application, Justice Lisa Ramsumair-Hinds said the conduct of one of the former prosecutors in the case posed no remaining risk of direct or inadvertent disclosure of confidential information to say a fair trial for Akeel Mitchell would be impossible.
She said there was no evidence of a discussion of evidence between the former prosecutor and her colleagues who were appointed to prosecute.
Mitchell, 28, and Richard Chatoo, 30, have both opted for a judge-alone trial. However, Mitchell’s attorney Mario Merritt has asked that the indictment for murder against him be stayed permanently because of a possible unfair trial process.
In an application made last November, Merritt submitted that the prosecutor, Maria Lyons-Edwards, who was previously assigned to the case, had represented Mitchell at his preliminary inquiry at the magistrates’ court.
New prosecutors were assigned, but Merritt went ahead with his application saying that he did not know what information the previous state attorney might have shared with the new prosecutorial team of Sabrina Dougdeen-Jaglal and Anju Bhola.
In her ruling, Ramsumair-Hinds was critical of Lyons-Edwards’ conduct and said prosecutorial misconduct should not be condoned or ignored.
For this reason, she directed the Registrar of the Supreme Court to send her ruling and the transcripts and affidavits on the issue to the Judicial and Legal Service Commission, the Director of Public Prosecutions, and the prosecutor herself for investigation. She has also restrained Lyons-Edwards from having any part to play in the case.
However, she said despite the “blatant lies” to the court by the state attorney, a stay was not necessary in considering the public’s interest as well as those of the accused before the court in the final determination of serious criminal charges.
“Certainly, the conduct of Mrs Lyons-Edwards offends the court and warrants some scrutiny. However, a stay should not be ordered for the purpose of disciplining prosecutorial misconduct,” the judge ruled.
In referring to affidavits from defence attorney Wayne Sturge, who represented Mitchell at the inquiry, and Lyons-Edwards, the judge said the prosecutor’s version could not be relied on because she had robbed herself of credibility.
The judge also faulted DPP Roger Gaspard to have assigned her to the case since he would have had intimate knowledge that she represented Mitchell – challenging a police witness in cross examination – since he was the prosecutor at the inquiry.
[caption id="attachment_870438" align="alignnone" width="520"] Justice Lisa Ramsumair-Hinds.[/caption]
“It was therefore improper for the DPP to have assigned her to conduct the case for the prosecution, in spite of her conflict of duty,” the judge said, as she suggested reform of the system of assignment of prosecutors.
“Though I attribute no impropriety to the DPP whatsoever, I nevertheless highlight the gross inefficiency in the system of assignment.”
Though Lyons-Edwards was not the trial counsel appointed, she did represent the prosecution at the pre-trial process, and Ramsumair-Hinds said, “That is remarkably injurious to the DPP’s department as it exposes her abject disregard for the risk she took in continuing to actively prosecute, even after it was made clear that she ought not to.
“I am most concerned, however, about Mrs Lyons-Edwards’ blatant lies to the court… How can any advocate lie so brazenly to the court?” the judge questioned in reference to evidence given by the prosecutor in defence of the application.
“It is clear to my mind that Mrs Lyons-Edwards has absolutely no appreciation of the impropriety involved.”
At Monday’s virtual hearing, Ramsumair-Hinds also revisited the issue of the men’s remand at the Youth Training and Rehabilitation Centre (YTRC).
At the last hearing, she questioned the location of their remand. She said they had long passed the age of 18 and enquired of the other factors involved to keep them there.
Attorneys for both men had expressed concern for their safety if moved to the maximum security prison because of the nature of the charge against them.
Ramsumair-Hinds said the prison commissioner, when asked, also admitted to the Registrar he could not understand why the court continued to keep the men at the YTRC since the only thing keeping them there was the court’s order.
She said the commissioner noted he found himself with the competing interest of the need to protect the inmates at the facility who are under the age of 18, and was more than able to secure the men’s custody at an appropriate facility since he was not of the view the YTRC was it.
“There is no longer a need for this court to make a specific type of remand. The prisons do not require it,” the judge ruled even as Chatoo’s attorney, Evans Welch, asked her not to make the variation today since he needed time to consult with his client to determine if he should make an application regarding their remand.
Merritt also shared similar sentiments and the prosecution said the requests by the defence were reasonable.
Ramsumair-Hinds, though noting that the court does not have the authority to tell the prison where to keep people, or to designate the YTRC as the appropriate facility for those who had security concerns, ordered that the two be kept at a facility suitable to the nature of the charges and demeanour of both men, their peculiar security needs and their age.
“The commissioner has said the only thing that is keeping him from having two adults in a juvenile facility was the court’s order. There is no concern from the commission that they need to remain there for their personal safety,” she said, while admitting that if removed from the YTRC they would have to be some type of assimilation for them.
“But that is for the prison authorities.”
After the discussion, Ramsumair-Hinds agreed to leave the arrangement in place.
Sean Luke’s body was found in a sugar cane field near his home at Orange Valley Road in Couva in March 2006.
The six-year-old had been sodomised with a sugar cane stalk that ruptured his intestines and internal organs. He died from internal bleeding.
Mitchell was 15 at the time he was arrested and charged while Chatoo was 12.
Luke’s murder sparked public outrage and is considered to be one of the most gruesome in TT’s history.
The matter comes up for hearing on Thursday for case managment after which a date is likely to be set for the start of the trial.
Mitchell and Chatoo are also being represented by Kirby Joseph, Randall Raphael, Kelston Pope and Gabriel Hernandez. Anju Bhola and Sophia Sandy-Smith are also prosecuting.
 
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