Defence challenges witness statement in Kingston police murder trial

Defence lawyers for six police personnel on trial for murder in the Home Circuit Court in Kingston spent Tuesday urging the trial judge not to accept a witness statement into evidence. Their position was that the witness should personally tell the court why she is unable to testify.

The prosecution, headed by Kathy-Ann Pyke, has made a special application seeking to have the written statement admitted without requiring the witness to go into the witness box.

The defence asked Justice Sonia Bertram-Linton to block an Independent Commission of Investigations (Indecom) officer from giving evidence in place of the witness, who is reportedly abroad and said to be unable to attend because of family matters.

The witness is a former Indecom ballistics analyst who provided a statement about her role in the investigation of the January 12, 2013 shooting deaths of three men by a police team.

Matthew Lee, Ucliffe Dyer and Mark Allen were fatally shot by police on Acadia Drive in Barbican, St Andrew, during what was described as a shoot-out with lawmen. A fourth man was reported to have fled, and two illegal guns were recovered.

Defence attorney Hugh Wildman argued that allowing the Indecom officer to speak for the witness would amount to hearsay, which he said could not properly be received by the court.

“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 referring the court to legal authorities.

Wildman said the authorities he was relying on showed that third-party evidence may be accepted only in limited circumstances involving a person’s “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.

He also noted that the witness had not made a dying declaration, another category of evidence that could have been admitted.

The other defence attorneys, John Jacobs and Althea Grant-Coppin, supported Wildman’s argument.

The matter is to continue on Wednesday, when Pyke is expected to answer Wildman’s submissions and cite legal authorities in support of the prosecution’s application. Justice Bertram-Linton is expected to decide the point after hearing both sides.

The judge is also due to rule on a dispute over a bullet cartridge linked to the case. Pyke has been seeking permission for a ballistics expert from the Government Forensic Laboratory to return the spent casing to the lab for certain confirmations.

The defence objected, saying there was no need to revisit the spent shell because it had no probative value. They argued that their clients have consistently said they acted in self-defence when the three men were killed, and have never denied firing their weapons at the location.

Justice Bertram-Linton is expected to determine whether the expert may take the spent casing back to the laboratory for further examination.

Facing murder charges are Sergeant Simroy Mott, Corporal Donovan Fullerton, and constables Andrew Smith, Sheldon Richards, Orandy Rose and Richard Lynch. Fullerton is also accused of making a false statement to Indecom.