PROSECUTORS, in their final submissions to an appeal mounted by convicted felon Tesha Miller, who is serving 38 years at hard labour for orchestrating the 2008 slaying of then Jamaica Urban Transit Company (JUTC) Chairman Douglas Chambers, on Friday entreated the court that if it finds that Miller’s conviction has to be quashed, then it should order a retrial.

The possibility of a retrial has loomed because of two thorny issues relating to the interpretation of the legislation under which Miller — who was charged with the offences of being an accessory before the fact and after the fact for the killing — was convicted in the Home Circuit Court and sentenced to 38 years and nine months.

Director of Public Prosecutions Paula Llewellyn, King’s Counsel, making final oral submissions on Friday in prevailing on the court to find all 14 grounds of appeal from Miller’s defence team worthless, said “none of the grounds have any merit”.

“We expect that the convictions would be upheld and the sentences affirmed. But if not, we would wish to indicate that, if it is any at all that on any of these grounds Your Ladyship and Milord should find that there was any error of law that would occasion a miscarriage of justice or appear to, given the circumstances and the cumulative effect of the high quality of the summation and the conduct of the trial by the learned trial judge, we would submit that if there is any issue, then the proviso should be applied and the conviction and sentence affirmed.”

Continuing, she said: “If it is that Your Ladyships and Milord may, in an abundance of caution, feel that the particular infraction is of such that the proviso based on the authorities [case law] — and they are legion — that that would not be appropriate, then it would be our submission that given the considerable and overwhelming evidentiary material available to the Crown, then we would ask that a retrial be ordered in light of the fact that, though the incident occurred in 2008, Mr Miller was only apprehended in October 2018 and he was tried within a year,” she said.

The proviso referenced by the chief prosecutor is contained in Section 14 of the Judicature (Apellate Jurisdiction) Act, which addresses how appeals are determined.

The section states that the court, on any such appeal against conviction, shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported — having regard to the evidence — or that the judgement of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal provided that the court may — notwithstanding they are of the opinion that the point raised in the appeal might be decided in favour of the appellant — dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. It further says, subject to the provisions of the Act, the court shall, if they allow an appeal against conviction, quash the conviction and direct a judgement and verdict of acquittal to be entered, or if the interests of justice so require, order a new trial at such time and place as the court may think fit. It adds that on an appeal against sentence the court shall, if they think that a different sentence ought to have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefore as they think ought to have been passed, and in any other case shall dismiss the appeal.

On Friday the DPP noted further that, “The Crown, in terms of fairness and delaying, would not be out of time in asking that the interest of justice would be best served for a retrial to be ordered.”

She, however, said the prosecution’s asking for a retrial was a last resort as its “main and critical position is that the learned trial judge was impeccable and extremely fair in her conduct of the trial, notwithstanding the provocation and occasional disrespect from counsel for the defence [four attorneys], and that the learned trial judge conducted herself with [dignity] as a member of the judiciary”.

“We would finally ask that Your Ladyships and Milord find that there is no merit in any of the grounds put forward by the defence of Mr Miller, and that the conviction on counts 1 and 2 [accessory after and before the fact] for the murder of Mr Chambers, that the application be refused and the conviction and sentence upheld,” Llewellyn said.

Miller was convicted in December 2019 and sentenced in January 2020. The alleged shooter, Klansman lieutenant Andre “Blackman” Bryan, was however acquitted after a 6-1 majority verdict of not guilty was handed down in the Gun Court Division of the Home Circuit Court in 2016 following his trial there.

Miller’s legal team, on the basis of that acquittal, has been contending that a no-case submission for Miller should have been upheld, based on Section 35 of the Criminal Justice (Administration) Act under which Miller was tried.

The section states that, “Whosoever shall counsel, procure, or command any accessories before the other person to commit any felony — whether the same be a felony at common law or by virtue of any statute passed or to be passed — shall be guilty of felony and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted, as an accessory, may be punished.”

Miller’s attorneys are arguing that a correct interpretation of the section is that an accessory before the fact cannot be properly convicted of that offence unless the principal has already been convicted of the substantive offence.

They said given the fac tthat Byran — who was named on the indictment as the principal — was freed, Miller should have been released as well.