CONSTABLE Noel Maitland’s defence attorneys were taken by surprise in the Kingston and St Andrew Parish Court on Monday by the prosecution’s unwillingness to disclose certain documents, which prevented them from applying for bail on behalf of their client in his murder case.

Maitland was charged with murder in the case of his missing girlfriend, Donna-Lee Donaldson, who was last seen at his Chelsea Manor apartment in St Andrew on July 12.

The prosecution cited witness safety and the potential for interference with witnesses as reasons they did not wish to disclose the documents. They also indicated their intention to have the matter transferred to the Home Circuit Court next month.

Kaysian Kennedy-Sherman, attorney-at-law sitting in for lead defence counsel Christopher Townsend, told the court that she did not have the liberty of relying on the summary outlined by the prosecution in the preliminary report in circumstances where it is clear there are other documents “that can be disclosed on the defence but are not being disclosed at this time”.

Kennedy-Sherman further told the Jamaica Observer that she had intended to make a bail application but, unfortunately, the prosecution did not disclose several documents despite a request made two weeks ago.

“It is quite disappointing. We are taken by surprise. This is something I have never experienced in all my years of practice. They have chosen not to disclose certain documents. They have also indicated their reason but the court, in its own assessment of the matter, has indicated that it was not satisfied with those reasons, and so we were ambushed. The Crown has indicated that it intends to have the matter transferred to the Home Circuit Court on September 16 but, in keeping with our obligations to our client, we have to wait on the proper documentation before making an application. We do not have a full view of the matter and so it would have been irresponsible of us to proceed,” she pointed out.

Inside the parish court on Monday the prosecution told the judge that they have consorted with their seniors at the Office of the Director of Public Prosecutions and, at this juncture, are not in a position to make additional disclosure as it relates to civilian witnesses. The prosecution added that they certainly will not seek to curtail the position of the defence or the extent to which they pursue their application but, as it relates to safeguarding witnesses and ensuring the investigation is not thwarted, they would be concerned if the statements are disclosed.

The prosecution added that it will be relying on the preliminary report and said the substantive nature of what is obtained in those statements include DNA analysis, cyber forensic evidence, and witness timeline evidence as it relates to certain factual circumstances. The factual circumstances surround the apartment where it is believed Donaldson was killed, which turned out to be where Maitland lives.

The prosecution said there were no identifying witnesses, meaning there was no one who witnessed the actual murder of Donaldson, but enough was available to rely on circumstantial evidence.

Senior Parish Court Judge Lori-Ann Cole-Montague, however, took the prosecution to task, stating that it couldn’t be that the majority of the witness statements could not be disclosed.

“This doesn’t sit well with the court because the duty to disclose is not a discretionary duty — it is a duty that every prosecuting counsel has. There have been things happening recently in terms of prosecutors going to different places. If I were a prosecutor I would perhaps tread very carefully to ensure that my duty as prosecuting counsel is discharged. Not to say that there is no respect or regard for seniors, but when you stand in court as prosecuting counsel, or any of the clerks on this building, I expect them to be strong and stand on their own feet and act with conviction — regardless of what anybody else wants to say.

“Recognise the climate in which we operate. When things are shrouded in secrecy it allows for distrust. People might have their view of the defendant, but the man must be heard and the circumstances being heard must be fair. It must not be that somebody has something that could perhaps assist him and it is being withheld. I am having a challenge with the position of the prosecution and I have never had this sort of challenge in my judicial career — which didn’t start yesterday,” Cole-Montague said.

The matter returns before Cole-Montague on September 16.