THE Appeal Court last Friday, in response to arguments by the legal team for incarcerated underworld figure Tesha Miller that a retrial should not be ordered based on the delays in trying his case and further delays in his appeals process, said it “sincerely apologises” for the three-year delay in the delivery of its judgment, describing it as “unfortunate”.

It, however, pointed out that there “was no delay in the trial of the matter, with the result that the applicant’s right under Section 16(1) of the constitution was not engaged on this account”.

According to the Appeal Court, although the offences were committed in June 2008, Miller was “not taken into custody until October 29, 2018 and was only arrested on November 1, 2018” as there was no evidence on which he could have been arrested prior to the Crown witness of fact’s statement to the police, which was completed in March 2018.

“This passage of time by itself, therefore, would not weigh against the ordering of a new trial,” the appeal panel reasoned on Friday in quashing the sentences and convictions of Miller for engineering the 2008 murder of former chairman of the Jamaica Urban Transit Company (JUTC) Douglas Chambers and declaring that November 2019 to January 2020 trial a nullity. However, in entering a judgment and verdict of acquittal for the offence of accessory after the fact to murder, it ordered that Miller be tried afresh for the offence of accessory before the fact to murder “in the interest of justice”.

It further ruled that the new trial must commence within six months of the conclusion of the trial proceedings in which Miller is currently engaged. Miller, since February 4 this year, has been on trial in the Home Circuit Division of the Supreme Court — indicted 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 of the indictment, which charges leadership of a criminal organisation. The Crown has not yet called a quarter of its 99 witnesses. He has pleaded not guilty to all the charges.

“We acknowledge the applicant’s evidence that he had a difficulty in defending himself arising from this period of delay and that his difficulty would now be worsened by the further lapse of time. In that regard, specific directions can be given to the jury relevant to the impact of delay on the case for the applicant,” the Appeal Court said Friday.

It, however, took pains to delineate the timeline in the matter, stating that the trial against Miller proceeded in November and December 2019, and he was sentenced in January 2020.

“In those circumstances, it can readily be seen that there was no delay in the trial of the matter…concerning the appeal, permission to appeal was sought in January 2020 and in the same month, this court requested the record of proceedings. The application for permission to appeal was considered by a single judge and a decision given on 13 December 2021, refusing leave to appeal conviction,” the court said.

After an amended application in 2022, the hearing of the appeal commenced in March 2023 but was adjourned for consideration of the applicant’s application to adduce fresh evidence. The decision on the application for fresh evidence was given on June 9, 2023, and the substantive appeal heard on June 12 to 16, 2023 and judgment reserved.

Said the judges of the appeal: “In the circumstances, it cannot be said that there was any delay between the filing of the application for permission to appeal and the hearing of the appeal itself. However, there has been a delay between the conclusion of the hearing of the appeal and the delivery of judgment, which has been reserved for almost three years. In effect, this would be a delay of 18 years between the commission of the offences and the judgment of this court, albeit only eight years between his arrest and the determination of the appeal.”

“Without engaging further in an individual consideration of these factors, this court accepts that the delay in the delivery of the judgment is unfortunate and could be considered a factor against the ordering of a new trial,” the appeal panel stated.

In the meantime, the panel, in addressing complaints raised by Miller that he has not commenced the period of incarceration and about the conditions of incarceration, said: “These circumstances, by themselves, would not provide any basis for finding prejudice against the applicant or for not ordering a new trial fortunate and could be considered a factor against the ordering of a new trial.

“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, ” the Appeal Court declared.

“Crucially, too, is the distinction as it relates to the length of time between the offence and the trial as well as the determination of the appeal. Furthermore, 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. However, in the interests of justice, orders will be made as to time constraints for any such trial,” it added.

Miller, in a 2023 affidavit relied on during his appeal, had contended that the delay prejudiced his ability to defend himself as the material incident on which the indictment was based allegedly occurred on or around June 27, 2008, which was 10 years before he was taken into custody. According to Miller, in 2008, and specifically when this incident occurred, he did not make any notes of his whereabouts and so when he was arrested in 2018 it was difficult to seek to reconstruct his whereabouts in 2008 in order to provide a proper defence. He claimed further that as his phone was seized by the State upon his arrest, he was unable to have a forensic analysis done, with a view to obtaining information to prove his alibi.

In evidence regarding his position as an inmate, Miller complained that as an “appellant”, he has not started serving his sentence despite the length of time for which he has been incarcerated. Further, as a result, he claimed that he receives worse treatment than non-appellant inmates, alleging that he worked during his time in prison but was not paid because he was an appellant.

Additionally, he said he was advised by his attorney that as an appellant he was entitled to certain rights, such as being able to provide food for himself, wear his own clothing, and use his own bedding, but he told the court he has not been afforded those rights.

He further asserted that: “After more than 15 years after the material incident, I cannot remember key details as it relates to where I was at the material date. I recall that at some point around the incident date I was with my mother. My mother has since died and is no longer available as an alibi witness for a trial. She was not used on the last occasion since the trial process was unfair and adverse remarks were already made about her by jurors. I would not be able to defend myself properly, after more than 15 years, since I am unable to get the phone records to prove my location history and I also recall [sic] events from the year 2008.”

Added Miller in the affidavit: “There are no contemporaneous notes or statements made by me or the defence to refresh my memory of my case in relation to an incident which took place 15 years ago. I would be at a distinct disadvantage since the Crown has notes and statements from 2008 and 2018, and I am relying, essentially, on my memory. There was no written statement or instructions on my behalf in relation to this matter.”

He further claimed destitution, stating, “I am financially embarrassed and unable to pay for another trial. I have exhausted my last financial resources. I don’t trust the legal aid system to present my case fairly due to its resource constraints and flat fee for lawyers which cannot properly present my defence. The delay in trying my matter and hearing this appeal has deprived me of my constitutional right to a fair hearing within a reasonable time. No delays can be attributed to me. I firmly believe that a retrial would be oppressive to me in light of the full facts of my case.”

The Court of Appeal building located on King Street in downtown Kingston. (Photo: JIS)