DEFENCE attorneys representing six policemen in their Home Circuit Court murder trial in Kingston, on Tuesday fought to convince the trial judge that she should not allow a written statement from a witness to be admitted into evidence.

The attorneys were of the opinion that the witness should give her own explanation to the court as to why she can’t testify. The prosecution team, led by Kathy-Ann Pyke, submitted a special application to have the statement tendered into evidence without the witness having to appear on the witness stand.

However, the defence attorneys appealed to trial judge Sonia Bertram-Linton, asking her to prevent an officer from the Independent Commission of Investigations (Indecom) from being allowed to testify on behalf of the witness, who is said to be overseas and cannot attend the trial allegedly due to family issues.

The witness is a former ballistics analyst at Indecom who had given a statement in relation to her involvement in the investigation into the shooting deaths of three men by a police team on January 12, 2013.

The three men — Matthew Lee, Ucliffe Dyer and Mark Allen — were killed by the police on Acadia Drive in Barbican, St Andrew, in an alleged shootout with the cops. A fourth man was said to have escaped and two illegal firearms were seized.

According to defence attorney Hugh Wildman, if the Indecom officer was allowed to testify on behalf of the witness, he would be giving hearsay evidence, which the lawyer contended was not allowed.

“Every element of the trial must be proved by admissible evidence whether before the jury or outside the jury. It must be proved by admissible evidence. This is a criminal trial so you can’t just water down the requirements of the law. That cannot be done,” he said.

“Rules of admissibility do apply in these proceedings just like when you are doing the general trial. The rules of admissibility do not allow for you to call the Indecom officer just to tell what the former Indecom analyst would have said,” Wildman added, while citing authorities grounded in law.

He said based on what is contained in specific authorities in law, the only time evidence from a third party can be received is when it concerns “state of mind”.

“It permits the use of documents in criminal investigation to try and prove that the maker does not want to give evidence through fear. The requirements are disjointed and it is not sufficient to prove that the witness is absent through fear,” he said.

“If, for example, the Indecom officer was coming to give evidence to say that the lady said she was afraid, then that would fall in the category of state of mind. This is not a state of mind case. He is coming to say she is out of the jurisdiction which has nothing to do with state of mind. It is plain and simple hearsay, which is inadmissible,” Wildman said, adding that the witness did not make a dying declaration, which would have also been admissible.

The two other defence attorneys in the case, John Jacobs and Althea Grant-Coppin, agreed with Wildman’s position.

The trial resumes on Wednesday, when prosecutor Pyke is expected to respond to Wildman’s submission. She is expected to present authorities in law which support her case.

Judge Bertram-Linton should make a ruling on the issue after hearing all the submissions from the defence and prosecution.

The judge is also expected to rule on a issue involving a particular bullet cartridge connected to the case. Pyke has been pushing to have a ballistics expert at the Government Forensic Laboratory take the spent casing back to the lab to make certain confirmations.

The defence team objected to the request from Pyke, insisting that there was no need to focus on the spent shell because it had no probative value. They said that their clients have always maintained that they were acting in self-defence when the three men were killed and at no point did they deny firing their weapons at the scene.

The judge is expected to rule on whether the expert would be allowed to take the spent casing back to the lab for additional scrutiny.

On trial for murder are Sergeant Simroy Mott and Corporal Donovan Fullerton, along with constables Andrew Smith, Sheldon Richards, Orandy Rose, and Richard Lynch. Corporal Fullerton is also charged with making a false statement to Indecom.