The prosecution in the ongoing trial of 25 alleged members of the so-called Tesha Miller faction of the Klansman gang on Monday continued battling to have the statement of a dead woman, regarding the February 2020 murder of a man called Noah Smith at Yarico Place in St Andrew, tendered into evidence.

The Crown had indicated its intention to present submissions on the matter in the course of making a Section 31 (D) application under the Evidence Act. The application in effect allows the introduction of statements as evidence in court when the witness cannot testify live — usually due to death, illness, being abroad, or being unable to be found after reasonable efforts. The offences to which the statement is connected are contained in counts 15 and 16 of the indictment.

The witness, Shanice Roberts, died in February 2021 but had provided a statement to cops ahead of her demise regarding the Friday, February 7, 2020, murder of Smith.

The accused — Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald — are being tried for “knowingly facilitating the commission” of that robbery and murder.

The Crown’s application has, however, been challenged by the defence who have charged that the identity of the woman was in serious doubt. The defence, in its arguments to Justice Dale Palmer who is trying the matter alone, has contended that the evidence of a detective constable who had been the one to record Roberts’ statement on the night of the incident was inadequate. The defence maintains that the photo of a woman, which has been entered as an exhibit and which that cop had identified as the woman he spoke to the night of the murder, was not “one and the same person”.

The detective constable had told the Crown during his evidence in chief that he would be able to recognise Roberts if he saw her again by her “facial features”, which he said was marked by “a very small nose”.

The defence, in battling to keep the woman’s statement out of the trial, has insisted that the photo was too blurry for him to even see her nose. Another witness who knew the dead woman personally, in identifying her from the photograph had said while its quality was dubious, she was certain that it was Roberts.

On Monday, the prosecution, in its submissions, requested permission from the bench to recall those two witnesses.

The acting deputy director of public prosecutions who has been marshalling the evidence reminded the court that the requirements to be satisfied under the legislation being relied on requires only that: a statement is given; the person giving the statement is deceased; and that no reason arises that will cause the court to exclude the statement.

According to the lead prosecutor, the Crown’s witness, who gave evidence that Roberts had died, was sufficient to establish the second limb of the requirements which was that she had died.

“That same day the document was tendered into evidence, which was identified by the two witnesses [as Roberts]. It is sufficient to say, milord, that having assessed the evidence which has been led, the significant thrust in the challenge to the evidence thus far is whether or not that nexus was created and whether the exhibit is sufficient to provide the witness an opportunity to confirm that nexus. We take the evidence for what it is. I believe there is no gainsaying in saying that the statement we are seeking to put in is not an identifying issue. The purpose or reason the Crown seeks to place this evidence before the court is so as not to deprive the court of any material in coming to their findings,” the lead prosecutor said in asking the court to allow the two witnesses to be recalled for the Crown to elicit further evidence in respect to both.

“There is no issue with the witness saying Roberts is dead [based on tenor of cross examinations so far], the sole issue is the nexus between the deceased and the individual the detective constable recorded the statement from. His evidence, in essence, is that he is not certain, for reasons of the distortion of the photograph [of Roberts], he is unable to confirm. Having regard to that evidence it is what has propelled us to make this particular application,” the senior prosecutor said further.

Noting that the defence will no doubt “object”, he added, “We submit that in coming to your decision your lordship must consider the timing of the application which comes immediately after the cross examination of [the cop who took statement] and before any submissions in respect to this application. If your lordship exercises the discretion to allow us to recall these witnesses [it] will not prevent the defence from making any challenges to the application as a whole and it certainly does not deprive them of the opportunity to make challenges to the specific point which we are asking for the witnesses to be recalled for”.

Referencing case law, the senior prosecutor said these “will show, the earlier the application is made in the context of the ability of the defence to challenge the further evidence, it is the more your lordship should lean towards granting the application”.

“The timing is first and important. Secondly, in coming to determine whether or not [the application will be granted] the court will have to look to see if an exercise of the discretion not to grant the application will deprive the court of the opportunity to have the best evidence before it. We submit, milord, that [if] your lordship decides to exercise its discretion not to, it will in effect deprive the court of material it could use to understand and to weigh the evidence as a whole, particularly on these counts,” he stated.

In addition, he said the court must also weigh its mind as to whether or not the application will occasion any prejudice significantly to the individuals indicted for the acts.

“Our response to that is no, it would not primarily because our learned friends have the opportunity to elicit any evidence before the court and to challenge any additional evidence before the court. More importantly, it is not evidence of the nature which is inherently prejudicial,” the lead prosecutor argued further.

Defence attorney Denise Hinson, in an initial response to the submission, said the defence had been “ambushed” by the prosecution, noting that the authorities/case law in relation to the additional submissions on the application, which had been disclosed only that morning, was at least 50 pages.

She said the defence would need additional time to peruse and formulate its response. Furthermore, she said she was unclear as to the reason for the application since she had made an earlier submission asking for one of the same witnesses to be recalled and had been denied.

Colleague defence attorney Sasha-Kay Shaw, in a further response, said the application was “inappropriate at this juncture”.

Justice Palmer ruled on the matter by inviting the defence to make written submissions on their objections, all of which will be heard this Thursday.

The prosecution, in the meantime, will continue calling other witnesses on other counts when the matter resumes on Tuesday morning at 10:00 in the Home Circuit Division of the Supreme Court, downtown Kingston.