ON FEBRUARY 1, a High Court judge will rule on an application by one of two men accused of the brutal killing of six-year-old Sean Luke in a cane field near his home at Orange Valley, Couva.
If the matter goes to trial, Justice Lisa Ramsumair-Hinds will also decide whether the two men, now 30 and 28, are to remain at the Youth Training and Rehabilitation Centre (YTRC), where they have been remanded since their arrest.
They have expressed concern for their safety if moved to the maximum security prison.
Akeel Mitchell, 28, and Richard Chatoo, 30, have both opted for a judge-alone trial.
Mitchell’s attorney, Mario Merritt, has asked for the indictment for murder against him to be stayed permanently because of a possible unfair trial process.
In an application made last November, Merritt submitted that the prosecutor previously assigned to the case, Maria Lyons-Edwards, had represented Mitchell at his preliminary inquiry at the magistrates’ court. This had been brought to the judge’s attention when the case was reassigned to her. Lyons-Edwards initially indicated she could not recall, but when pressed admitted it was correct.
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.
The judge invited submissions on the issue. However, after the State responded to the application, new information was filed, in the form of an affidavit by attorney Wayne Sturge, who was Mitchell’s trial counsel at the inquiry. Merritt asked the court to find that the initial prosecutor had robbed herself of credibility and has likely contaminated the DPP’s department. To support his position, he also referred to the records of the proceedings at the inquiry.
This, Ramsumair-Hinds said, has now shifted the evidential burden to the prosecution. She gave Dougdeen-Jaglal additional time to respond to the new evidence and invited attorneys for both sides to address several issues raised in UK and Australian case law on staying proceedings in criminal cases.
Also at Thursday’s virtual hearing, Ramsumair-Hinds raised the issue of the rationale for both men being remanded at the YTRC, as she said because of their location, her court has had to share the virtual electronic court resources with the Children’s Court division.
She said if the matter had to go to trial, sittings would be stymied because the video links were only available to her from 1 pm.
“I have a difficulty scheduling matters at 1 pm or forcing 9 am sittings,” she said. As she questioned the location of their remand, she said they had long passed the age of 18 and asked about the other factors involved to keep them there.
In 2010, attorneys for both men petitioned Justice Carla Brown-Antoine to let them remain at the youth facility because they wanted to complete the YTC-sponsored training courses offered there. Since there was precedent for males over 18 to remain there, and since the prosecution did not object, the two were returned to the YTRC.
“Remember, that facility is designed to protect others under the age of 18,” she said. The judge said she will instruct the registrar to invite the prison authorities to make recommendations on their remand.
Merritt said the nature of the case put the two at risk if they were put in the general prison population.
“It evokes very raw emotions right around. In general, in prison, offences against children are taken to another level by inmates,” he said, also adding that to put them there and to ensure their safety, the prison authorities would require more resources.
Chatoo’s attorney, Evans Welch, said with the trial possibly starting soon and the publicity that would be generated, the prison general population will be made sensitive to the matter and it was expected that inmates would turn on the two, as has happened in the past.
He said the prison authorities would not be able to protect them.
Welch also asked if the matter could be heard in a full courtroom setting, since part of the evidence involves an alleged videotaped confession, which, he said, could raise issues if the trial proceeded virtually.
In response, Dougdeen-Jaglal said although there was nothing in law that said they had to move to another facility because of their age, she expressed some concern that the possible trial could be stymied because of where they are currently remanded and the shared resources with the other court division.
“The fact where they are are limiting our availability for links…In the final analysis, there must be a balancing act. I take note of their safety concerns, which will now return to prominence if we proceed to trial, But there is a need to balance the moving forward of the matter. But, I have no difficult with them remaining where they are,” she said.
On a full in-person hearing, Ramsumair-Hinds said while she was bound by the court’s covid19 emergency practice directions, adding that the trial can take place in a hybrid form, with both virtual and live evidence, she will look at the issue again if the matter gets closer to trial.
She also raised an outstanding issue relating to the location of the trial, since a previous application had been made for it to be transferred to Port of Spain. But since the case no longer involves a jury, she said there was no need to consider it.