Accused persons will purposely and willfully cause delays to later complain that their rights were breached.
This was among the submissions made today by counsel for the Attorney General, Acting Deputy Solicitor General (ADSG) Roger Barker as the constitutional motion brought against the AG by Larry Agard continued in the No. 7 High Court before Madam Justice Cicely Chase. Agard was charged in 2006 with the murder of Marville John.
Counsel Larry Smith represents Agard who claims pursuant to Section 18 (1) of the Constitution that his rights to a fair in a reasonable time have been breached and that the delay in the matter is such that to have the trial at this stage would be prejudiced in mounting his defence and therefore unfair
Barker submitted today that the prosecution did not infringe Agard’s rights but that the delay was the accused’s own doing.
The Acting Deputy Solicitor General drew evidence from 2016 transcripts which outlined exchanges between the court and Agard. The exchanges, according to Barker, show delay as a result of Agard seeking to get his attorney Ajamu Boardi. Agard insisted on having Boardi represent him.
There appeared to be issues regarding Boardi’s retention in the matter as well as concerns regarding legal aid and payment to Boardi.
“This to and fro that was happening wasn’t caused by the Crown and the judge; it was caused by the accused man and his attorney. On one occasion he appeared on his behalf and as a friend of the court. On the other occasion he is not appearing and can’t represent him and the accused man is sticking out; he is the only man I want,” Barker argued.
He said they were times Boardi was there and times he was not hence “still around the courts giving the accused man hope”.
“That also is affecting the case going forward because the judge does not want to take a position whereby Mr Agard would be disadvantaged by not having the counsel he wanted,” he continued.
He said the inference was drawn that the judge did all he possibly could to ensure the accused rights were protected, that he had a fair trial and right to the specific counsel that he wanted to represent him.
“There was an order in place [for a speedy trial in 2011]… the Crown is ready, the judge is bending over backwards to assist the accused man. The accused man himself had a weapon there, in that, he complained that his right to a speedy trial is being breached. To argue that your right to a speedy trial is being breached but you are the one preventing the trial from being speedy and this is up to 2016,” he charged.
He drew the court’s attention to R v Morin where it said that there is recognition “that accused persons will purposely and willfully cause delay simply so that the right can be frustrated and then they can run to this honourable court and argue that their matter has been delayed”.
This particular observation, according to Barker, was applicable to this situation where the claimant had consistently voiced his desire to have Boardi as his counsel yet he was unable to.
Barker said the matter was one that needed to be resolved with a trial and that the “action or non action by the accused which is inconsistent with a desire for a timely trial should be considered by the court”.
The case continues next Friday.