Trial judge Justice Dale Palmer is to rule on Monday whether two witnesses in the ongoing trial of 25 alleged members of the so-called Tesha Miller faction of the Klansman gang will be brought back to the stand to testify. On Thursday he heard a third bout of legal submissions as the prosecution continues to joust for the witnesses to be recalled.

The decision should resolve a prolonged battle by the Crown 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 defence, in earlier submissions, 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 woman in the photo which was entered as an exhibit was not the same woman the cop spoke to on the night of the murder.

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”. However, during cross-examination by the defence he said while he could identify the woman he spoke to, the image the court had purporting to be her likeness was “distorted”.

The defence, in battling to keep the woman’s statement out of the trial, had insisted that the photo was too blurry for him to even see her nose.

The second witness who knew the dead woman personally, in identifying her from the photograph had told the court that while its quality was dubious, she was certain that it was Roberts.

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 defence, which has raised strong objections to the witnesses being recalled, on Thursday furnished the judge with written submissions urging the court to toss the Crown’s application which, it said, stood to prejudice the accused and also run afoul of constitutional provisions.

Senior defence attorney Denise Hinson, in a fresh submission on Thursday, said if the court granted the Crown its request, “it would be to allow the Crown to repair the damage done to its witnesses during cross-examination and to bolster evidence that was demonstrably undermined by the testing”.

“To permit the Crown at this stage to recall the witnesses would be contrary to settled authority [case law]; it would offend the principle of finality in the testing of the evidence and it would cause real prejudice to the defendants,” declared Hinson, who had failed in her efforts to get the court to recall one of the said witnesses.

“If your Lordship recalls, the Crown vigorously opposed, and the court ultimately refused, the defence’s application to recall [the other] witness on a very a narrow point, that being the defence wanting to clarify how the name [of the dead woman] is spelt. It is our respectful submission, Milord, that to ask this honourable court to grant the Crown’s application to recall that very same witness is to invite the court to make a decision which would expose it to the criticism that the governing rule has been applied unevenly as between prosecution and defence,” she maintained.

Hinson in arguing further that the Crown chose to lead the identification evidence in the way it did said it should not be allowed to recall the witnesses to “shore up identification” simply because cross examination had “produced unsatisfactory answers for the Crown” and had hurt its case.

“We are moving the court not to rule for the prosecution… the Crown as ministers of justice ought to withdraw its application given the state of the evidence, particularly of [the cop]… to permit the recall, after cross examination has revealed weaknesses is to allow the Crown a tactical advantage that no defendant could ever enjoy,” she stated, noting that the detective who would now be privy to the issues surrounding his evidence would “reformulate” his responses to meet what the Crown is requiring of him.

“That is not clarification, that is reconstruction of the Crown’s case,” she stated.

In responding to the defence, the assistant director of public prosecutions maintained that the Crown’s reason for recalling the witnesses was to “create the nexus” between the person who gave the statement and the person identified as the deceased. In contending that “there is no right that will be abrogated” if the witnesses are recalled, the prosecutor said there were built-in safeguards, noting further that the defence would have an opportunity to once again cross-examine.

Furthermore she said the Crown, based on the ruling of the court, would have to make further submissions on admissibility of the evidence which was a further safeguard.

“I have gotten a bit to chew on,” said Justice Palmer, in indicating that he would rule on the application on Monday when the matter resumes.