Page 579 - Magistrates Conference 2019

court or taken advantage of a technicality or where on a balance of probability the accused
has been or will be prejudiced in the preparation or conduct of his defence by delay on the

part of the prosecution.” Hui Chi Ming v R [1991] 3 All ER 897 JM 2011 CA 94.

In Jamaica, the position is no different as was evident in the case of Thomas v R JM 2011 CA
94. In that case, one of the issues on appeal to the Court of Appeal was whether the fair trial

of the appellant was compromised by the improper conduct of the prosecution in putting to
the defence witness an allegation of criminal conduct, namely, that she was paid to give

evidence, while adducing no evidence to substantiate the allegation, whereby a miscarriage of
Justice may have occurred and whether the learned judge erred in permitting the said

allegation to be made without any intervention on her part.

Admittedly, this case involved a trial in the Supreme Court before a jury however some of the
principles distilled therein are nonetheless applicable. The Court of Appeal felt that the

questions for determination was whether the conduct of counsel for the prosecution
undermined the integrity of the trial so as to amount to injustice to the appellant and whether

the learned judge had failed to exert authority and properly control the proceedings resulting

in the trial being unfair.

The principles of general applicability are as follows:

(a) That it was a cardinal rule of law that ever accused person who is brought before the
court is presumed innocent and that this presumption of innocence remained

throughout the trial until the evidence adduced points to his guilt beyond a reasonable
doubt.

(b) That persons charged with the responsibility of marshalling evidence for the

prosecution as well as the trial judge must at all times ensure that the conduct of the
trial is beyond reproach.

(c) That admittedly, in light of the trial process being adversarial, the trial cannot always

proceed flawlessly, however, procedural breaches, where they do occur, will not
always result in harm so serious as to imperil the fairness of a conviction.