A push by the trio of lawyers representing Portland businessman Everton "Beachy Stout" McDonald, to have a particular statement disclosed two months ahead of his trial in September next year, was on Thursday sharply rebuffed by Supreme Court Judge Justice Vinette Graham-Allen over concerns about the safety of the witness.
Justice Graham-Allen, who was presiding over the case management hearing for McDonald and his co-accused Oscar Barnes — for the July 2020 murder of Tonia McDonald, the businessman's wife — at the Home Circuit Court in downtown Kingston, had enquired whether 'all parties' were "satisfied that full disclosure had had been made" and was told 'yes'.
The initial "yes" of the defence, however, turned to a 'no' because of one of three items prosecutors explained had not yet been disclosed. The Crown, in detailing the three, said two documents were on seal by the court while the third, which was a statement, is being withheld as they were not prepared to disclose the identity of the maker until two weeks before the start of the trial in September next year.
Defence attorney Earl Hamilton, who along with attorneys Courtney Rowe and John Jacobs represent McDonald, in attempting to pull back on that agreement said the timeline was too short and instead requested that the court allows for that disclosure to be done two months before.
That proposal was, however, shot down by the judge.
"No, no, no, the rules are very strict; we are living in a country and the courts must be seized of what is happening. We have had situation where the material was disclosed the Friday before the Monday when the case is supposed to start, you know what happened, the Saturday witnesses were interfered with and threatened. That is the reality in our country so if the prosecutor is saying two weeks before, I think that is more than sufficient time," Justice Graham–Allen declared .
"I am not prepared to give any two months; two weeks it is going to be, and you have an appreciation of what is taking place, one has to be very careful and be aware of what is happening in our country, we cannot turn a blind eye, Mr Hamilton," she continued.
Hamilton, in attempting to explain that attorneys were aware of the situation the judge was alluding to, said the two months were thought to be reasonable given the difficulty in getting instructions from their client because of the location where he is housed.
"I have said what I had to say, two weeks, two weeks. This is a particular document that falls in that particular category; there is a reason why it is not going to be disclosed before two weeks of the trial. I am not prepared to give any more time, two weeks," the judge emphasised.
"Did you say three weeks?" Hamilton dead panned.
"Two, two, t-w-o, the number two, don't misquote me…when I have ruled, I have ruled," Justice Graham- Allen rapped.
When Rowe resurrected the matter some moments later stating that the defence was under the impression that it would have been given a pseudo statement (statement without the real name of the witness) first and then the true identity statement later, Justice Graham-Allen said "there is a law on it, this is not something the prosecutors picked out of their heads, it is not unique to Jamaica".
Meanwhile, the defence team on Thursday revealed that McDonald and his co-accused Barnes, who have been charged with the murder of Tonia, have opted to be tried by a jury. That trial is expected to begin in the Home Circuit Division of the Supreme Court on September 18, 2023 and will run for seven weeks ending on November 3. McDonald was charged for that murder in August 2020. He and Barnes are standing trial together for that matter. The prosecution on Thursday said the Crown will be calling 25 witnesses while the defence said it would be calling seven witnesses for McDonald and two for Barnes. Barnes will be called as one of the two witnesses in his defence, the court was told by his attorney Ernest Davis. McDonald's attorneys said they would be hinging their case on the issue of identification while Davis said "identification and alibi" would be the main issue where his client was concerned.
In the meantime, in the second pre-trial hearing for McDonald, who is also charged for the 2009 murder of his first wife Marlene, it was disclosed that he would be tried for that matter in January 2024. He will be tried alone. The mode of trial for that matter has, however, not been disclosed. Investigators reopened that cold case in 2020 following Tonia's murder. Her partially burnt body was found with the throat slashed beside her burnt car on the Sherwood Forest main road.
McDonald, also called Mr Mack, was charged along with Barnes, otherwise called Tiny, of Epsom district, Annotto Bay, St Mary; and 56-year-old Denvalyn Minott, otherwise called Bubble, a fisherman of Ranch Hill, Portland, after an intense investigation. During the course of that probe, details emerged linking the accused to the murder of his first wife, Merlene, who had been shot dead outside her home in Boundbrook, Portland, in May 2009. The allegations are that he had paid a police detective to kill her after their marriage crumbled in 2007 and she had left the matrimonial home.
According to the allegations, McDonald gave the order for his second wife to be killed, "how it should be done and why". McDonald, it is being alleged, wanted her to be stabbed, instead of being shot, because the first wife had been shot and he did not want the second killing to lead back to him. McDonald is alleged to have told Minott that he would get $3 million to commit the murder.
Minott, in September of 2020 appearing before the Home Circuit Court, said he participated in murder of Tonia, who had trusted him. For his confession, Minott was sentenced to 19 years in prison. Minott also told the court at that time that he subcontracted the hit to Barnes, and then stood watch.