THE legal tug of war between prosecution and defence in the ongoing Klansman gang trial over whether the statement of a woman who died before the matter began is “relevant” to the case should be settled by a ruling from trial judge Justice Dale Palmer on Monday.

The Crown, when the matter began in February this year, had signposted that it would be making submissions in the course of 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, Shaniece Roberts, died in February 2021 from health complications but had provided a statement to cops, ahead of her demise, regarding the Friday, February 7, 2020 murder of a man called Noah Smith at Yarico Place in St Andrew. The accused — Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald — are being tried for “knowingly facilitating the commission” of that murder and robbery.

However, before addressing the trial judge on the admissibility of the statement from Roberts, the Crown first had to satisfy the court that the woman who died was one and the same as the woman who provided the statement to police. The defence has maintained that the woman in two photos which were entered as exhibits was not the same woman the cop spoke to on the night of the murder or the one identified by a close acquaintance who unequivocally identified Roberts from the two photos she said she supplied to the Crown.

At the end of May, after recalling the two witnesses, Justice Palmer cleared the Crown to continue submissions to have Roberts’s statement put on record in the trial.

Last Thursday an assistant deputy director of public prosecutions argued that “the witness statement of Shaniece Roberts is directly relevant to the case at bar” and that “her statement is probative and relevant to the case”.

The assistant deputy director of public prosecutions, who noted that the evidence to prove the death of Roberts was not contested by the defence during cross-examination of the witnesses, further contended that, based on the safeguards provided under law, no challenge had been made in the case to push the trial judge to exercise his discretion to exclude the evidence of Roberts. Furthermore, in assuring that the statement does not reference the names of any of the 25 accused, the prosecutor said if anything “inflammatory” was contained in the document, it could be edited.

Furthermore, she said the statement was not the only evidence the Crown had in its arsenal relating to the two counts.

“We remind the court that should it be admitted into evidence, there are sufficient safeguards,” the assistant deputy director of public prosecutions stated.

In the meantime, attorney Sasha-Kay Shaw, in her submissions, argued among other things that other witness statements should be provided so the court can judge the adequacy of the witness statement on which the Crown is relying.

“The prosecution has indicated that the statement is of probative value but why is the prosecution relying on Roberts alone when, based on the evidence, there are other witnesses available?” Shaw questioned in pointing out that the cop had testified that there were several other women present that night who were also taken to the police station. According to the attorney, those added statements must not be kept from the court.

“This application ought not to be made in circumstances where other witnesses exist when the prosecution has not shown where it is necessary to adduce the evidence [of one individual] to the exclusion of others. In light of the fact that this witness is not being used to identify anybody, I am thinking this witness is only being used to corroborate that this incident took place. The Crown needs to say why the application is necessary,” Shaw contended, arguing further that the prosecution had also made its application under the incorrect section of the statute.

Shaw, in ending her submissions, urged the judge to use the discretion given to him in law not to admit the statement.

In the meantime, defence attorney Denise Hinson, in further submissions, said the Crown had not proved “beyond a reasonable doubt” the nexus between the person who gave the statement and the person who died.

“We rest on our submissions that the recall [of the two witnesses to establish that nexus] ought not to have happened,” Hinson declared.

“We are not contesting that [Roberts died] or that she gave a statement to the detective constable…our submission is that the Crown has not proved [conclusively]” that these are not two different individuals. According to Hinson, the court should have “declined to admit the statement because it is untested and untestable hearsay”.

“I hear the Crown’s submission that her evidence is relevant and that she is an eyewitness to the events and so her statement is probative. There is no evidence she is an eyewitness…a reasonable inference could be made, although there is no direct evidence that statements were also collected from others, and so to admit this statement without the others and the opportunity for the accused to cross-examine would put the defendants at an unfair disadvantage and would imperil the trial as a whole,” Hinson argued.

Justice Palmer will on Monday indicate whether he will admit the statement into evidence when the matter resumes in the Home Circuit Division of the Supreme Court in downtown Kingston. The 25 accused said to comprise the Tesha Miller-led faction of the gang are the second faction of the gang to now be tried by the courts. They are to answer to 16 offences allegedly committed over the span of five years between August 2017 and November 2022, according to the case being built by the Crown.