The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A CONVICTED child killer's right to a fair trial was not breached by extensive pre-trial publicity of the case, a senior prosecutor told Court of Appeal judges on Friday.

Garvin Gaskin, Acting Director of Public Prosecutions, was responding to the submissions of  Wayne Munroe, QC, who, last week, argued that heavy focus on the prejudicial effect of the constant reporting of the case of Kofhe Goodman - which included the repeated reference of a proposed sex offender’s registry bill (Marco’s Law) despite no evidence of sexual assault in the case - was a basis for the appellate court to overturn Goodman's conviction for the September 2011 murder of Marco Archer.

Mr Munroe had also argued that Goodman’s defence had been further hampered by the trial judge allowing the defence lawyer’s rude behaviour to distract the jury from the flaws in the circumstantial evidence regarding the incident.

Goodman is seeking a deferment of a re-trial if the court were to allow the appeal against his murder conviction and death sentence on the grounds of publicity affecting the case.

Friday’s proceedings before Justices Anita Allen, John Isaacs and Stella Crane-Scott saw Mr Gaskin dispute the submissions of Mr Munroe on pre-trial publicity and the conduct of defence counsel in the trial.

"We say that in the circumstances, a fair trial could be had and was had and we rely on the case of Montgomery and also Grant vs DPP (Jamaica)," the senior prosecutor said.

Those decisions, he said, required the complainant to demonstrate the widespread effect of the alleged prejudice.

"We submit they have not demonstrated this to the court," Mr Gaskin added, notwithstanding the pronouncements made by National Security Minister Dr Bernard Nottage within weeks of Goodman's trial.

"Was there similar pronouncement made by another minister in the case of Grant vs DPP?" Justice Isaacs asked.

"Not in the Grant's case" Mr Gaskin said.

"But you still find that authority case applicable in this case?" the judge probed.

"We say the principle applies. The utterances by the minister, we accept there was reference to a Marco's Law and creation of sex offender's registry. But with respect to the trial of this gentleman (Goodman), the minister never said this defendant was guilty," Mr Gaskin said.

"Even if the minister did say as much, it was the Crown's case that he (Goodman) was guilty of the offence and to prosecute the matter," the senior prosecutor added.

"Mr Gaskin, you cannot be serious?" Justice Isaacs suggested.

"We are considering this ground of pre-trial publicity after the fact, not before the fact (of trial)," Justice Allen noted.

"Is this case on all fours with the Grant decision? Justice Crane-Scott asked.

"Factually no, but in principle, we say it is applicable," Mr Gaskin said.

Justice Crane-Scott said the trial judge's decision on the pre-trial publicity of Goodman's case was missing and it left the court with not much to draw on.

"We maintain that it's not been established that he did not have a fair trial," the prosecutor said.

"How would they be able to demonstrate the prejudice is widespread?" Justice Isaacs asked.

"I don't think we would have any affidavit from any jurors," Justice Allen said.

Mr Gaskin said if there was evidence of a juror having commented on social media or online publications regarding the case, or directly making a comment in court about Goodman, there would have been grounds to allege that Goodman could not or did not receive a fair trial. This was not the case, he said.

Justice Isaacs asked the prosecutor where the evidence of sexual assault was to justify the adverse reports linking the creation of a sex offender's registry to this case.

"We say we led evidence of a child abducted, found dead, naked and wrapped in sheets," the prosecutor said.

"What does the pathologist say?" Justice Isaacs probed.

Justice Allen interjected that the pathologist determined that no injuries of a sexual nature could be found due to the level of decomposition of the body.

"There is no legal requirement that you must find an injury," Mr Gaskin submitted.

"And that's enough to raise the fact that this young boy was assaulted?" Justice Crane-Scott asked.

Addressing the issue of Geoffrey Farquharson's conduct at trial, Mr Gaskin said that Goodman, based on the transcripts, worked in tandem with Mr Farquharson to derail the progress of the trial that eventually ended after four months.

The senior prosecutor relied on references to the transcripts in the Crown's submissions which illustrated instances where Mr Farquharson made statements that suggested he was acting on his client's instructions.

Mr Gaskin also said that contrary to Mr Munroe's suggestion that Goodman was a lay person who didn't understand the judicial system, Goodman had been tried in about four criminal matters over two decades.

"The appellant was not a novice when it comes to the criminal justice system," the prosecutor submitted.

Responding to Mr Munroe's argument that the imposition of the death penalty was not warranted in this case, Mr Gaskin submitted that the case fell within the new statutory framework setting out cases that could be deemed worst of the worst.

He said the case of Marco Archer followed a pattern from Goodman's previous convictions for the sexual assault of a boy he denied murdering in the early 1990s and the attempted murder of another young boy who resisted his sexual advances, for which he received 18 years' imprisonment.

The appeal hearing was adjourned to October 23 for continuation of the Crown's submissions and Mr Munroe's reply.