A “slew” of last-minute applications from attorneys representing accused gangster Tesha Miller on Monday effectively stalled the Crown’s attempt to begin a fresh round of submissions in its continued push to have a dead woman’s statement tendered into evidence. There was also a lengthy exchange with defence attorneys that left the usually even-tempered trial judge Justice Dale Palmer visibly annoyed.

The identification of the dead woman, Shaniece Roberts, has been a bone of contention in the matter for several weeks now with numerous submissions by both the Crown and the defence as they battle over the admission of her photograph into the trial’s records.

After recalling two witnesses and introducing a fresh photograph last week, Justice Palmer had cleared the Crown to continue submissions under Section 31 (D) of the Evidence Act to have Roberts’s statement put on record in the trial on June 1.

The application, in effect, is to allow 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. Roberts provided a statement to cops ahead of her demise from health complications. This was related to the Friday, February 7, 2020 murder of a man called Noah Smith at Yarico Place in St Andrew. The offences to which the statement is connected are contained in counts 15 and 16 of the indictment. The accused — Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald — are being tried for “knowingly facilitating the commission” of that robbery and murder.

However, on Monday when the matter resumed, requests from defence attorneys Denise Hinson and John Clarke, who represent Miller, made it clear that the Crown’s application would be put on hold.

According to Hinson, the defence, in retrospect, had decided that it would need to view all the photos submitted to the Crown by an acquaintance of Roberts who last week told the court that she had sent “several” photos from which the Crown selected one which was shown to witnesses.

There was a testy exchange as the trial judge attempted to get a direct answer on whether the defence was requesting an adjournment to allow the Crown to satisfy the request.

Justice Palmer pointed out that the defence had closed its case on the
voir dire relating to the photos last week and had indicated that they would not be calling any witnesses. He scolded the defence, noting that the request would amount to a “delay” and could have been avoided.

Hinson said she was not aware that the defence had closed its case as she might have been “absent” from the courtroom at the time. She went further to note that the defence also had “grave” concerns about whether the investigator who had turned over the photographs to the Crown was, in fact, the detective constable who identified Roberts from photos. The judge, in allowing the Crown to recall the two witnesses, had barred it from making any direct contact with either.

According to the defence, it needed to be certain that the Crown had complied. Attorney John Clarke, in doubling down on Hinson’s requests, told the trial judge that the defence was requesting, in writing, information about “the circumstances in which those witnesses were informed to come back to court to be recalled, and to disclose the photographs, to whom the photographs were disclosed, and who ultimately took the decision to cherry-pick one”.

Said Justice Palmer, “I know all of this, but in the interest of justice and fairness, it’s unfortunate that when we had the time last week all these things were not raised… It’s unfortunate, in the interest of justice and fairness, that today when we are to hear the application is when all these issues are being raised.”

He then asked Clarke whether given the myriad items requested, the defence was asking for an adjournment.

“Milord, you are the umpire of fairness. And bear in mind, Milord, that when a decision was made to allow the witnesses to be recalled that would trigger automatically enhanced disclosure obligations on the prosecutor or prosecuting authority to ensure that no injustice is done by that process,” an evasive Clarke replied.

Justice Palmer tried again.

“I’ve not yet even heard whether or not the application is to adjourn the application, which is all I’ve asked. If the position is that we’re going to adjourn the application, then say so. Nobody wants to say, ‘Yes, that’s our application’…Fairness also includes a timely disposal of this matter, and that’s why I want to have an idea, when you’re requesting these things, if you appreciate that it necessitates an adjournment of the application, which nobody wants to accept. How can a statement or statements to find out from her who she’s spoken to and what they did and all be done today for us to hear the application? She gave evidence, Wednesday of last week, so the short answer is, ‘We need to adjourn the application,’ ” he said.

Clarke pithily replied, “Justice rushed is justice crushed, and we don’t want justice crushed.”

The judge cuttingly retorted, “We don’t want the platitudes, counsel, I just want a direct answer! That is what annoys, just tell me directly what it is you’re asking for. Is your application for an adjournment of the application? That’s what you need to say.”

Several exchanges later the matter was adjourned to allow the Crown to produce the material requested by the defence.

“It is clear that we’ll not hear this application today, because no right-thinking person could think that the things that counsel has just alluded to can be obtained today, or for us to even hear this application…How on earth could that be done today, so why not just say that? And we have to be almost an hour later to get to this point, to get to what was obviously the position from the beginning…I am not afraid to say [the word] ‘annoyed’. It is annoying, because we had the time last week,” Justice Palmer said firmly.

The Crown is expected to continue with the application on Wednesday when the matter resumes in the Home Circuit Division of the Supreme Court in downtown Kingston.

CLARKE… justice rushed is justice crushed, and we don’t want justice crushed