Appeal Court slams "hopeless" appeal, "highly improper" prosecution

The Office of the Attorney General mounted a “hopeless” appeal with “no merit” against a suspended Court Registrar acquitted of allegations that he stole a gun, the Court of Appeal found on Thursday.

The Court also expressed serious concerns about the “highly improper” way the case for the prosecution was assembled to begin with. 

The judgement was authored by Justices Robert Lloyd Fisher, Ian Harrison and Tafaoimalo Leilani Tuala-Warren. 

Suspended Deputy Court Registrar, Victory Lesa, was acquitted in May by the Supreme Court on a charge of stealing a SAR 8 Springfield rifle from Ministry of Justice offices.

“Mr. Lesa should have never been charged on evidence available to the Police. The prosecution’s case was hopeless and could have never improved on appeal,” the Justices ruled.

His conviction was appealed on the grounds that the verdict was unreasonable because it was founded upon evidence given unlawfully by a prosecution witness. 

The prosecution relied on two witnesses, the first was Logino Brown, who identified Mr. Lesa as having sold him the missing gun. 

The Supreme Court had earlier heard that Mr. Brown was visited three to four times by a Court Registrar who had “pressured [him] to make a statement” and then “said to him to help him out by giving a statement and so he did”.

The Appeal Court also found that process concerning: 

“[That evidence] had all the hallmarks of fabrication. It was given to a court official not a police officer, only after Mr Brown was detained in custody for some days and advised by the official that exercises his power and to release him on bail until he identified the person who supplied him with the weapon.

“The official referred to Mr Brown’s necessarily prolonged separation from his family unless he spoke. Mr Brown admitted the operative effect of this inducement.

“We return to the Judge’s finding that the evidence of the two primary prosecution witnesses was tainted by the existence of an ulterior motive. We have real concerns about the circumstances in which Brown’s incrimination of Mr Lesa was obtained.”

The Judge was satisfied that his account was unreliable and an unsatisfactory foundation for prosecution. 

Furthermore the Appellate Court ruled the procedure was "highly improper". 

“It is no function of a court official to participate actively in gathering evidence for the prosecution of a person for a criminal offence. Nor is it his or her function to hold out an inducement to a witness to give that evidence, particularly one of the very questionable and repetitive type given. In response Mr Brown fabricated his incrimination of Mr Lesa,” the ruling said. 

“It tainted the prosecution from the outset. Mr Lesa should have been charged on the basis of Mr Brown’s evidence”. 

On the issue of costs, the appellate court agreed with defence counsel the “appeal had no merit”. 

The Appellate Court ordered that in the interest of justice the Attorney General pay costs to Lesa in the amount of $4,000. 

Mr. Lesa had since been suspended when he was charged last year. 

“[The respondent’s lawyer] Mr Leung Wai advises that Mr Lesa has been suspended by his employer without pay since he was charged. The suspension has continued through the period while the Attorney General’s appeal was pending," the Court found. 

“The Attorney General has properly referred us to the M.J.C.A.’s statutory obligation to reinstate an employee who is acquitted of a criminal charge and reimburse him or her for all lost salary. 

“We trust the M.J.C.A. will also give favourable to reimbursement of Mr Lesa’s legal expenses in defending these proceedings.”