Defence said the Crown had failed to properly establish the chain of custody for the documents.
Transcripts of recorded conversations temporarily shelved after defence protest

Prosecutors in the trial of the 33 alleged members of the Klansman gang were yesterday, for the second day in a row, railroaded in their attempt to have several pieces of evidence authenticated and entered as exhibits into the court's records.

This after defence attorneys objected to the admission of two transcripts of the recordings of alleged conversations between accused members of the gang, who are being tried before Chief Justice Bryan Sykes, into evidence against the background that the Crown had failed to properly establish the chain of custody for the documents.

Witness Number One, a former gang member-turned-State-informant, testified that he gave the police three phones with recordings of conversations between himself and members of the gang, including Andre “Blackman” Bryan, who is alleged to be the leader of the criminal organisation.

The witness had testified that he had downloaded a call recording app that was set to automatically record multiple cellphone conversations which were also saved. He had forwarded the recordings to cops and when the memory became full, the witness said, he took it back to the Counter-Terrorism and Organised Crime Investigations Branch (C.TOC), where the recordings were transcribed.

As the recordings played, the witness said he identified each voice heard to the cops.

The witness, who said he started working with the police undercover in 2018 while Bryan was incarcerated to help dismantle the gang, had told the court that two of the phones were given to him by cops and the third was given to him by a member of the gang on Bryan's orders.

The prosecution's first police witness yesterday morning began her testimony regarding the intelligence secretly recorded by Witness Number One. She said the recordings were transcribed by her in the presence of the witness, beginning in 2019 and ending in 2021. She then proceeded to identify the contents of the two transcripts handed to her as the material she had typed from the recordings on a CD provided by the Cybercrimes Unit of the Jamaica Constabulary Force, the first of which contained over 170 pages and the other 69 pages.

However, after the witness identified the first document as the one signed by her, the prosecution's request that the document be admitted into evidence as exhibit three was rejected by defence attorneys.

Lloyd McFarlane, attorney for Bryan, raised the first objection, saying, “I thought my learned friend was only going to ask that it be marked for evidence; this is the document that they were attempting to put into the hands of the witness [Witness One who had testified that he worked with the police to gather evidence by secretly recording the conversations of the accused gangsters]… all we have from this witness [police witness] is that that witness identified voices. I'm objecting to that,” McFarlane said.

Asked Chief Justice Sykes, “Because of what? What is missing?”

McFarlane said, “Evidence as to who these voices belong to.”

He was followed by Keith Bishop, attorney for accused Lamar Simpson, who in further protest said, “I am objecting as well because I think the starting point must be the telephone or telephones that might have been used. If indeed the telephone operates like a computer, and it is well-known that they have common features, and if they do, then we have to know more about the telephone.”

Bishop was, however, interrupted by Justice Sykes, who insisted, “No, that argument started off on the wrong footing because what the witness has said is that she listened, she typed, that is what she is saying. As to whether it's a computer or not, what she is saying is, it played, I listened, I typed. This document was actually prepared by her from recordings that she is saying she heard.”

In response to further protests from Bishop, Justice Sykes said, “It's not functioning as a computer in the way that you are thinking, Mr Bishop. The witness has said, I have listened, I heard, I typed. You are making a false statement, there is no evidence that you have heard that it is a computer… what is the legal objection you are making?”

“The objection is that as defence counsel we ought to know… Nobody knows about the chain of custody of the phone, where it was purchased, how many hands it has gone through and whether or not it is indeed a smartphone…” the attorney explained.

The chief justice, however, said the attorney's line of argument was flawed. “Again, you are making an assumption. You can't make assumptions; you can say what is not known, but you can't predicate an argument as if the fact exists when it hasn't been established, so what you can say is that you don't know the type of phone but you can't say 'if' ”, the chief justice said.

In the meantime, attorney Kimani Brydson said he objected to the documents being entered as exhibits as, “There has been no evidence by any of the witnesses of the safekeeping or integrity of the device or the recordings, and I think this is supplemented by the fact that these recordings were manipulated by the witness himself and sent to the police officers.”

This was met by an “Okay, that's a more reasonable proposition” by the chief justice who made biting sotto voce comments after rubbishing lines of arguments raised by at least two other attorneys.

Attorney Walter Melbourne, appearing for accused Damaine Elleston, raised concerns about the origin of the recordings.

“The objection is that there is an issue of provenance, that is to say from whence this compact disc comes. The witness is saying she received a compact disc, we would not know about how this disc came about and how it was handled prior to… it is as if we are in the middle of nowhere. A CD appears and it is supposed to be tendered, the issue of provenance must be established,” he said.

The chief justice, after hearing the arguments from the defence, said, “So, the document won't be admitted into evidence at this time. We have to have other information concerning the movement of the information from point A to point B and eventually onto the document. We don't have sufficient chain of custody as to the contents of the document, that is the information. So that is the basis upon which it is not being admitted at this point.”

Prosecutors then asked for the first document to be marked for identification. They also asked for the second transcript and the compact disc containing the alleged conversations to also be marked for identification.

The witness is to be recalled at another time in respect to the items being entered into evidence.

On Monday, the Crown's case hit a snag after it was disclosed that other than a scene of crime photograph and the evidence of the Crown's witness there was nothing else available from the police in respect of evidence relating to a murder, which is count 15 on the 25-count indictment.

Bryan and co-accused Jahzeel Blake, Michael Whitely and Brian Morris are each charged with facilitating the commission of an applicable offence by a criminal organisation in respect of the murder of an unnamed “Rastaman”.

On Monday when the Crown attempted to place the photograph of the individual into the court records as an exhibit, it was prevented from doing so on the basis that the witness's assertion that he had seen the incident and had identified the dead man for investigators from a photograph line-up was insufficient.

“Herein lies the problem: That there is not sufficient evidence at this point to demonstrate that the witness is able to properly identify him from the photographs ,so I can't go with you on that,” Chief Justice Sykes ruled.

The trial resumes this morning when the second police witness, who took the stand late yesterday afternoon, will continue giving her evidence.

BY ALICIA DUNKLEY-WILLIS Senior staff reporter dunkleywillisa@jamaicaobserver.com

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