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Police failure to let accused see lawyer leads to dismissal

by Barbados Today
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The murder charge against Shamar Omar Ishmael was dismissed on Tuesday after a High Court judge found his constitutional right to an attorney-at-law during police investigations had been breached.

Ishmael, of 1st Avenue Jackson, St Michael had been charged with the October 7, 2016 murder of 34-year-old Kelvin Brewster, of Arsenal Playing Field Road, Jackson, St Michael, who was shot in the back of the head.

The accused was arraigned before the No. 5 Supreme Court of Madam Justice Pamela Beckles and had pleaded not guilty to the charge. A 12-member jury was selected and had been empanelled to hear evidence in the case in which Principal State Counsel Krystal Delaney was the prosecutor.

However, in voir dire proceedings over the past few days, Ishmael, through his attorney-at-law Safiya Moore, had been addressing the court on legal arguments in the absence of the jury.

In those submissions, the defence challenged the written and oral statements attributed to Ishmael by investigating officers, on the grounds that they were taken in “unfair circumstances” and were “not voluntarily made in that he was induced by fear of violence . . .”

They contended that officers were in breach of the Evidence Act, specifically in breach of Ishmael’s constitutional right to an attorney, when they failed to allow his lawyer who had come to see him at the police station to do so.

Justice Beckles stated that fact was not disputed and was, in fact, supported by the station log which recorded that the accused’s attorney was at the police station for less than ten minutes while his client was there but did not see him.

The judge made it clear that “every effort” should have been taken to “ensure the integrity of the circumstances under which these statements were obtained”.

“. . . . Police officers must understand and appreciate an accused’s right to have access to counsel whilst he is in custody and facilitate that contact with counsel in a timely fashion and not to do anything to impede that access,” she said.

“The failure of the police officers to inform the accused that an attorney had arrived at the police station to see him and communicate with him was very serious. This failure, in my opinion, had a significant impact on the accused’s constitutional right to counsel.

“The seriousness of the police officer’s failure, in this case, points very strongly towards exclusion of written and oral statements allegedly made by the accused in this case. The written and oral statements are therefore excluded from evidence in this trial,” she said before calling the jury back into the court.

The 12 jurors, who had been sworn in but heard no witness testimonies, were then instructed to return a not guilty verdict against Ishmael.

“In the circumstances, the matter against you is discontinued, you are free to go,” Justice Beckles.

“Thank you, Ma’am,” Ishmael replied as he walked out of the dock.

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