Another witness ordered to appear in a joint action brought by Frank Errol Gibson against the State has taken serious issue with the order.
Monday, Director of Public Prosecutions Charles Leacock, QC, strongly objected to being called before the No.8 Supreme Court as a witness in the matter.
Gibson is claiming damages in excess of $2 million in the lawsuit against the DPP’s office, the Attorney General and Dr Victor Eastmond.
“The subpoena issuing on the application of affidavit is frivolous, is vexatious,” Francis Depeiza, who is legal counsel for Dr Eastmond, told the court presided over by Madam Justice Pamela Beckles today.
Gibson is claiming that he was wrongfully charged, imprisoned and prosecuted for the 2002 murder of Francine Bolden, after the DPP discontinued the case against him on November 8, 2012 on the grounds that there was insufficient evidence to make out a case beyond reasonable doubt.
“[Dr Eastmond] has no apparent added value . . . to the proceedings in this case because Dr Eastmond cannot assist in what happened in the DPP’s chambers,” Depeiza argued.
In fact, the attorney called for the “subpoena [to] be struck out and withdrawn,” on the basis that it infringed on his client’s “privileges” under the Evidence Act.
“A witness has a right to object to give evidence in a matter to which he is not a party, on the basis that to do so may expose him to civil liability,” Depeiza argued, adding that the summons was riddled with “irregularities” and was an “abuse of process”.
“We are not denying that a person not party to an action cannot be called. He may be called in order to attend and he may be called to produce documents but not just any and every document because it cannot be a fishing expedition,” the attorney said.
But the claimant’s attorney, Larry Smith, countered saying that Dr Eastmond gave evidence as a “forensic odontologist” in another matter that was pertinent to the claimant’s case.
“Dr Eastmond as a result of indicating in his report . . . signed by him, purporting to be a forensic odontologist, certain actions took place, the end result of which is that Mr Gibson spent ten and a half years in prison. Nobody is saying that Dr Eastmond is the DPP or the AG but he was the principal witness, so said the CCJ [Caribbean Court of Justice and the] DPP. His evidence was the only evidence in that matter and that he is aware of,” Smith argued.
He also stood by his position that the summons issued by his office through the court was lawful and that the witnesses called must appear and take the stand.
“It is our submission that if Dr Eastmond wants to assert that there will be a civil penalty arising, he actually has to go and do that on the witness stand, not through his counsel,” Smith maintained.
Meantime, the DPP was basically quiet at the bar table today following yesterday’s fiery exchange with Smith on whether he could represent himself on some aspects of the case.
Smith said then the DPP could not do so unless he first indicated whether he had “fired the Solicitor General” as his legal counsel and was now representing himself.
Today, Justice Beckles ruled on the matter after making it clear that: “I run this court . . . I have a job to do . . . all I want at the end of the day is justice in the matter.”
She ordered that written submissions be made on the objections to the summons and reasons why the DPP should and or should not represent himself in certain matters of the case.
Justice Beckles then adjourned the matter until November 2, 2016.