Supreme Court judge Justice Dale Palmer on Thursday ruled that the prosecution in the ongoing trial of 25 suspected members of the alleged Tesha Miller faction of the Klansman gang will have to bring expert witnesses in order for 10 ballistics certificates relating to gun crimes supposedly committed by the accused to be “tendered and admitted into evidence”.

This follows on an application by the Crown at the start of the trial on February 4 to have the certificates tendered and admitted into evidence by way of notices which were served on the defence pursuant to section 46 (a) of the Firearms Act of 1967 (repealed in 2022).

At the time, oral objections were raised by the defence and two written objections later filed by attorney John Clarke, who represents Miller. According to the defence, not only were the notices improperly served, but the accused, should the court accept the application in its present form, would be robbed of the opportunity to object and have the experts made available for cross-examination by their attorneys.

An acting deputy director of public prosecutions had countered that the objections had been filed late and as such were “certainly out of time and ought not to prevent Your Lordship from allowing the documents to be tendered and admitted into evidence”.

However, Justice Palmer, in settling the matter when the trial resumed on Thursday morning in the Home Circuit Division of the Supreme Court in downtown Kingston, said, while the clear spirit of the legislation is to allow the Crown, where there is no objection, to tender that which otherwise would be a hearsay document into evidence for the truth of its contents, the spirit of the statute also extends, in his view, to “the ability to object in writing before it is tendered”.

“There’s no question in my mind that a valid notice has been served on the defendants, and save for the fact of the corresponding objection notices being filed and served late — in that they were served after the start of the proceedings — there appears to be no real issue taken to the objections, as filed,” Justice Palmer noted.

He said while the general objection filed by Clarke was “invalid… the other objection, though served after the stipulated time, if one is to keep the spirit and tenor of the legislation, which is to allow the defendant to object,” is, in his view, valid.

“The certificate where served as required, is admitted into evidence without the need to call the experts, subject to the defendant’s right to object. And in my view, that right to object should not be deprived … where it is filed out of time,” Justice Palmer explained.

The experienced jurist, however, acknowledged that while it is “inconvenient” to have all 10 certificates or any number of certificates put in [to evidence separately], as valuable time will need to be utilised in the trial that has some significant way to go, said the law accepts nothing less.

“If the legislation explicitly says that every defendant may object and the sole issue is that it is done out of time, but still in sufficient time to give the Crown and the court sufficient notice of the desire to object; I believe they ought to be allowed to take their objection. And it does bear some similarities to the authority (case law) relied on by the Crown that says, conversely, had the Crown served a notice late, but in sufficient time to allow them well-advanced notice of their intention to tender it, then no prejudice is done, so similarly, an objection taken, even if the result is inconvenient, they should not be denied,” Justice Palmer reasoned.

“I rule, therefore, that a valid objection has been filed and that the experts should be made available to be examined. That said, I believe, should it be that the Crown is able to show that one of the other exceptions of the hearsay rules, specifically under the Evidence Act are met, or any other legislation, for that matter, they may apply at some other stage in relation to the certificates, of course, to establish that the exception has been made,” he stated further.

He, in the meantime, rapped the defence for its stubborn stance on agreeing evidence in the matter (facts, documents, or testimony that all parties in criminal proceeding accept as true, meaning these facts do not need to be formally proven in court and physical witnesses do not have to take the stand, saving judicial time).

“Something that I’ve observed since the commencement of this matter is a refusal of any counsel to agree anything, in this case in a matter that still has some 90-odd remaining witnesses to be called. I ask the question, what is the point of insisting in all witnesses attending in person where there is no challenge to the evidence this particular witness is to give?” Justice Palmer questioned.

“So far as I’ve seen, even in these objections, no ground has been stated as to the reason, and I acknowledge the [law] doesn’t require that any ground is stated, but… why insist, when there is no dispute on these issues, and I ask this rhetorically. We need to get to the place where we have an issue-focused approach to hearing these matters. Is any more justice done by insisting that we sit until the end of the year, insisting that every witness come to say, ‘I took an item from this person to hand to the analyst to be analysed’ where you have not taken issue?” he pointed out further.

Noting that in several instances since the trial started “Witnesses have been called that not one question is asked of this witness”, Justice Palmer said, “I invite all counsel to remember that as we take the time of whatever period of the remainder of the year that is needed to hear this matter that there, as I have indicated before, is a cost to it.”

The matter continues at 10:00 this morning.