ALLEGED gang leader Tesha Miller has been given a reprieve by the Court of Appeal which on Friday quashed the sentences and convictions for his role in the 2008 murder of former chairman of the Jamaica Urban Transit Company (JUTC) Douglas Chambers.

In its ruling the Appeal Court declared Miller’s November 2019 to January 2020 trial a nullity and entered a judgment and verdict of acquittal for the offence of accessory after the fact to murder.

The court, however, ordered that Miller be tried afresh for the offence of accessory before the fact to murder, in the interest of justice.

According to the Appeal Court, this new trial must begin within six months of the conclusion of the trial proceedings in which Miller is currently engaged.

Miller since February has been on trial, with 24 others. answering to charges under the Criminal Justice (Suppression of Criminal Organisations) (Amendment) Act, commonly called the anti-gang law.

He is charged on 13 counts of the 32-count indictment and is the only defendant named on count one which charges leadership of a criminal organisation. He has pleaded not guilty to those charges.

Miller was convicted for the offences of accessory before the fact and accessory after the fact to murder in relation to the death of Chambers, following a trial in the Home Circuit Court between November 13 and December 3, 2019 before then Supreme Court Judge Justice Georgiana Fraser, sitting with a jury.

On January 9, 2020 he was sentenced to 38 years and nine months’ imprisonment at hard labour for the offence of accessory before the fact to murder,and 18 months’ imprisonment at hard labour for the offence of accessory after the fact to murder, with the sentences to run concurrently.

The alleged shooter in that incident, Andre “Blackman” Bryan — who is serving time on gang charges — had, however, been acquitted after a verdict of not guilty was handed down in the Gun Court division of the Home Circuit Court in 2016.

Miller’s application for leave to appeal his convictions and sentences was refused in 2021.

In a renewed application Miller, through his attorneys, sought leave to adduce fresh evidence, contending that a no-case submission should have been upheld based on Section 35 of the Criminal Justice (Administration) Act under which he was tried.

Miller’s attorneys argued 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 fact that Bryan — who was named on the indictment as the principal — was freed, Miller should have been released as well.

The Appeal Court however, in delivering its decision said, “as a separate, but important point, we do not agree with counsel for the applicant that there exists a general principle of law that the acquittal of the principal also leads to an acquittal of the accessory”.

Said the Appellate Court, “The authorities [case law] cited on behalf of the applicant demonstrate that each case must be decided on its own facts to determine whether the acquittal of the alleged principal would render the accessory’s conviction inconsistent. This is not the issue in the present case, as the applicant has not contended that there was an inconsistency. In the circumstances, even if the trial was not a nullity, and the point was raised before the learned judge, ground of appeal 7(a) would not have been meritorious.”

In declaring the proceedings in the lower court a nullity, the Appeal Court said Miller had, “successfully demonstrated that he was entitled to four peremptory challenges and that he was expressly denied the right to exercise two of those challenges.

“The effect, therefore, of such an irregularity is that the trial is voided and there is ground for a new trial to be ordered. In essence, it is treated as though there was no trial at all,” the judges of appeal said.

Attorneys for Miller had argued that during the polling of the jury he was entitled to four peremptory challenges but the judge erred in limiting the number to two.

They contended that as a result of this error, jurors served on the panel who should not have served, at least one of whom was expressly objected to making it so that Miller was deprived of his right to a properly constituted jury, making the trial unfair such that the conviction should be overturned.

In its ruling the Appeal Court said, “In all the circumstances, in relation to the offence of accessory after the fact to murder, the applicant having effectively served the period of imprisonment to which he was sentenced, it would not be in the interests of justice to order a new trial for that offence.

“However, in relation to the offence of accessory before the fact to murder, notwithstanding the factors that weigh against the ordering of a new trial, we believe that the seriousness of the offence, the prevalence of murder, together with the strength of the prosecution’s case and the likely availability of the Crown witness of fact, are of greater weight.”

In assessing the length of time between the offence and the trial as well as the determination of the appeal the judges said, “We believe that there are adequate measures in place that may mitigate against the possible prejudice that may be experienced by the applicant on the ordering of a new trial. We are of the view that the matter should be sent back for a new trial of the offence of accessory before the fact to murder. ”

Prosecutors, in making their final submissions to the Court of Appeal in June 2023, had urged the court that if it found Miller’s conviction had to be quashed, then it should order a retrial.

Then Director of Public Prosecutions Paula Llewellyn, King’s Counsel, making final oral submissions, said none of the 14 grounds of appeal from Miller’s defence team had any merit and that she expected the convictions to be upheld and the sentences affirmed.

“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,” said Llewellyn.