SUPREME Court Judge Justice Dale Palmer on Thursday assured the 25 defendants now on trial for crimes allegedly committed by the Tesha Miller faction of the Klansman gang that the integrity of the court process when evidence is given remotely is as unassailable as when witnesses appear in court physically to give testimony.

Justice Palmer was forced to address the issue after alleged faction leader Tesha Miller, through his attorney Denise Hinson, on Wednesday raised strong objections to the Crown’s indications that it would be seeking the cooperation of the defence to have a witness, a scene of crimes investigator who is currently out of the jurisdiction, testify via live video link if her statement in the matter could not be agreed (read into the records without the individual having to appear).

The evidence goes to counts 15 and 16 of the 32-count indictment brought by the Crown, and has to do with the 2020 robbery and murder of a man called Noah Smith in St Andrew. Prosecutors say the accused — Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald — “knowingly facilitated the commission” of these two offences. Miller is not charged on any of those two counts.

After the acting deputy director of public prosecutions leading the process indicated the issues surrounding the witnesses’ availability Wednesday, Hinson said, “We are not in a position to agree the statement at this point, and we are opposed to the application for the witness to give evidence [via the platform]. We are opposing…my instructions are to oppose.”

Asked by Justice Palmer “the basis for opposing the mode”, Hinson, who along with attorneys John Clarke and John Mark Reid represent Miller, said, “My client is strongly opposed, and to indicate at this point would be to breach certain privileges.”

“It’s not to pry into your instructions. I just wanted to know if it was a concern that the court could address, if it’s the surroundings, if it is the sterilising of the room. I just want to know if there is a concern that the court, through its processes, could address,” Justice Palmer pointed out.

“Guided Milord, but I hear my client, even though I am not addressing him, with a very strong “no” in the background, but I will take further instructions. But our position as of today is we are opposing, but I’ll have to take instructions in a different environment,” Hinson responded, adding that she would indicate by today what the final decision was.

Said Justice Palmer, “Very well, also be reminded the Crown has already telegraphed their intention to make a formal application [Section 31 (D) application] at which point I will have to [rule].”

Defence attorney Paul Gentles, who represents the accused, Spike and Wildman, who are named on the counts, had indicated that his clients “would not heavily be opposed to her giving evidence via the platform…but certainly would want an opportunity to question [cross-examine] her thoroughly”.

When the issue resurfaced on Thursday, just ahead of the adjournment, Justice Palmer, following an update from the Crown as to the witnesses who will appear this week, addressed the defendants.

“Just to assuage the concerns or to allay any concerns. I guess defendants may have [misgivings], but evidence that is given remotely is of no less value or greater value than what is given in person. It minimises delays rather than having to wait on a particular witness to return or whatever. That’s not the only instance, but in this instance, it is because the person is away,” Justice Palmer said.

Continuing, he noted, “There is no advantage or disadvantage to anyone. Yes, we do have limitations with the technology, but, you know, there’s no difference, essentially. So if that addresses any of the concerns. I hope it does.”

Speaking further to the issue, Justice Palmer, who is sitting alone in the trial of the 25, said, “The truth is I appreciate counsel’s need to have the witness available for cross-examination…I am not saying in all instances where the application is sought issues may not arise, but I can’t imagine what could arise that could not be addressed by appropriate arrangements for a proper venue.”

Gentles, addressing Justice Palmer further on the matter Thursday, said, “We have no objections to the witness giving evidence via video link, and the usual security measures and protocols can be applied. We’re not imposing a requirement that she be [at] an embassy or a consulate. Her evidence, once certain things are satisfied, we have no difficulty with them.”

After conferring with Miller, since none of his attorneys were present in the courtroom during the exchange, the attorney also indicated that the accused gang leader might have had a change of heart.

“I briefly had some basic instructions from Miss Hinson’s client, Mr Miller, and he has indicated, and without going into too much, that there might have been a slight misunderstanding as a regards to the count and whether or not it impacts him directly, and so he would like an opportunity to review his instructions with counsel, Miss Hinson, so that they are in a better position by Monday to give an indication where we’re going. I believe, though, Milord, based on the indication informally, I’ve asked him to speak with his counsel. I do believe we will be able to get some work done with this witness,” Gentles said.

“I hope an indication can be made that can guide the decisions as to how to approach,” Justice Palmer said in adjourning the trial to today at 10:00 am.

The Evidence (Special Measures) Act, which paved the way for the admissibility of evidence via live audiovisual links or video recordings in criminal and civil proceedings and in a coroner’s inquest, was passed in the House of Representatives in 2012. Since then, main witnesses and other witnesses in several trials, including the star witness in the King Valley Gang trial (2020) and the two star witnesses in the Andre “Blackman” Bryan faction of the Klansman gang trial (2021-2023) testified from remote locations via live video link.