Palmer to decide Monday on Crown bid to recall two trial witnesses

Justice Dale Palmer, the trial judge, is expected to deliver a ruling on Monday on whether two witnesses should be called back in the continuing case against 25 men said to belong to the Tesha Miller wing of the Klansman gang.

On Thursday the court heard a third round of arguments as prosecutors pressed for the witnesses to return. The ruling is set to settle a long-running dispute over whether the Crown may rely on a statement from a woman who has since died, tied to the February 2020 killing of Noah Smith at Yarico Place in St Andrew.

Prosecutors signalled they would argue under Section 31(D) of the Evidence Act, a route that lets courts accept a witness statement when the maker cannot appear—commonly because of death, sickness, travel abroad, or failure to locate the person after reasonable search. The statement bears on counts 15 and 16 on the indictment.

Shanice Roberts gave police a statement before she died in February 2021. It concerned the murder of Smith on Friday, 7 February 2020. The defence had earlier argued that a detective constable who took Roberts’s statement on the night of the incident did not lay a proper foundation for it.

Counsel for the accused still say the person shown in a photograph entered as an exhibit is not the same individual the officer met that night. In chief, the detective told the Crown he could pick Roberts out again from her “facial features,” describing “a very small nose.” Under cross-examination by the defence, he said he could still identify the woman he interviewed, but that the likeness before the court was “distorted.”

The defence, fighting to exclude Roberts’s statement, said the image was too unclear for him to make out her nose at all. A second witness who knew Roberts personally told the court that, despite poor quality, she was sure the photograph showed Roberts.

Michael Wildman, Jerome Spike, Nashuan Guest, and Geovaughni McDonald stand accused of “knowingly facilitating the commission” of the robbery and murder linked to those counts.

The defence, which strongly opposes any recall, filed written submissions on Thursday asking the judge to reject the Crown’s application. It argued the move would prejudice the accused and breach constitutional protections.

Senior defence counsel Denise Hinson, in fresh submissions on Thursday, said granting the request would mean “it would be to allow the Crown to repair the damage done to its witnesses during cross-examination and to bolster evidence that was demonstrably undermined by the testing”.

“To permit the Crown at this stage to recall the witnesses would be contrary to settled authority [case law]; it would offend the principle of finality in the testing of the evidence and it would cause real prejudice to the defendants,” Hinson said. She had earlier failed to secure recall of one of the same witnesses for the defence.

“If your Lordship recalls, the Crown vigorously opposed, and the court ultimately refused, the defence’s application to recall [the other] witness on a very a narrow point, that being the defence wanting to clarify how the name [of the dead woman] is spelt. It is our respectful submission, Milord, that to ask this honourable court to grant the Crown’s application to recall that very same witness is to invite the court to make a decision which would expose it to the criticism that the governing rule has been applied unevenly as between prosecution and defence,” she said.

Hinson added that because the Crown chose how to lead identification evidence, it should not now recall witnesses to “shore up identification” after cross-examination “produced unsatisfactory answers for the Crown” and weakened its case.

“We are moving the court not to rule for the prosecution… the Crown as ministers of justice ought to withdraw its application given the state of the evidence, particularly of [the cop]… to permit the recall, after cross examination has revealed weaknesses is to allow the Crown a tactical advantage that no defendant could ever enjoy,” she said. She warned the detective, now aware of the flaws exposed, would “reformulate” his answers to suit the prosecution’s needs.

“That is not clarification, that is reconstruction of the Crown’s case,” she said.

Replying for the Crown, the assistant director of public prosecutions said the recall was meant to “create the nexus” between the statement’s author and the person identified as the deceased. She argued that recalling the witnesses would not strip anyone of a right, citing safeguards and the defence’s chance to cross-examine again. She also said the Crown would still need to address admissibility in further submissions, depending on the court’s ruling.

Justice Palmer said he would decide on Monday when the case returns. “I have gotten a bit to chew on,” he told the court.