BY STEVEN JACKSON Business reporter jacksons@jamaicaobserver.com
Friday, December 12, 2014
Paula Llewellyn is lamenting a provision in the Evidence Act requiring the State to prove that computers being used to generate evidence are actually working.
The requirement, she argued, makes it difficult to submit computer evidence in financial crime cases.
“Right now, it is extremely archaic and very, very cumbersome. The prosecution has to prove that the computer was working. Can you imagine that? If the computer wasn’t working, then the material wouldn’t have been generated,” Llewellyn, the director of public prosecutions (DPP), told the third Annual Anti-Money Laundering (AML)/Counter-Financing of Terrorism (CFT) Conference on Wednesday.
The conference was held at Knutsford Court Hotel in Kingston by the Jamaica Bankers’ Association and Jamaica Institute of Financial Services under the theme ‘Financial Integrity – The Pulse of Economic Prosperity’.
Llewellyn argued that the law needed to be changed to make it easier to prosecute some of these matters. She said that in most other countries the presumption, under the law, is that the computer is in good working order, and if the defence says otherwise then the evidential burden shifts to them.
Llewellyn acknowledged that Justice Minister Mark Golding aims to get the Evidence Act amended, but said that he faces challenges within Parliament.
“It is not having an easy passage in Parliament because clearly, on both sides of the House — in the upper and lower — you have the worthy members of [the] defence bar,” she said.
In order to prove that the computer was in good working order, the office of the DPP would usually need to contact the person who serviced or installed the computer, then have that person appear as a witness.
Llewellyn asked Andrea Martin-Swaby from the Office of the DPP to describe the procedure. “As opposed to merely calling the compliance officer who would have checked the system and been familiar, we would perhaps have to call the person who services the system,” said Martin-Swaby.
“I know that can cause some undue pressure on the actual witness [to have] three witnesses come to establish this. And having done so, we would have to call other witnesses as well who would have had to generate the information and then establish that this was in working order at the particular time,” Martin-Swaby added.
Llewellyn also appealed to investigators and compliance officers to get as much evidence as possible to secure convictions.
“The money laundering cases have to compete against offences against the person matters, and other matters where sometimes persons are in custody and sometimes the capacity of our courts have not kept pace over the last 20 or 30 years,” Llewellyn said.
“We have to ensure that the evidential material collated is so tight, that once you disclose the statements to the defence, they have no other choice but to …force the accused to plead guilty,” she said.
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DPP knocks "archaic" Evidence Act
