Defence demands witness’s evidence struck from record in murder case against cops

Defence attorney Hugh Wildman has urged the court to exclude the testimony of a key prosecution witness in the trial of six policemen charged in connection with the January 2013 fatal shooting of three men on Acadia Drive in St Andrew, arguing that the evidence was “tainted and unlawfully obtained”.

Wildman told the court that the evidence of the female eyewitness should be “totally” struck from the record because she participated in a meeting with the prosecutor and another witness shortly before she took the witness stand.

He argued that such conduct breached the rules governing the preparation of witnesses and rendered the evidence inadmissible.

“It was an unlawful act, a breach of the rules of evidence, and it renders the evidence tainted and inadmissible,” Wildman told the court.

Witness coaching

He also argued strongly that the witness was being coached and that criminal law strictly prohibits witness coaching.

“There is a dramatic distinction between witness training or coaching and witness familiarisation. Training or coaching for witnesses in criminal proceedings, whether for prosecution or defence, is not permitted.”

According to the defence attorney, the meeting took place on February 24 in a counsel room near the courtroom and involved the witness, lead prosecutor Kathy Ann Pyke, and INDECOM investigator Warren Williams, who is also a witness in the matter.

“Discussion between witnesses should never take place, and the statements or proof of one witness should not be disclosed to another, and that is exactly what we are talking about here, Miss … statement is being put on a table in front of Mr Warren Williams and the prosecutor discussing the case,” Wildman argued.

During her evidence, the witness denied that the meeting was arranged. Instead, she said she was invited by the prosecutor to sit in the counsel’s room and that while there, the discussion focused on her statement. She said Williams, who came later, did not ask any questions or say anything.

She also told the court that the meeting ended prematurely after Wildman barged into the room and created a scene. According to her, she had asked what should happen if she could not remember what she had written in her statement.

Wildman, however, submitted that the meeting was arranged by the prosecutor and involved a discussion of the witness’s statement while it was laid out before those present.

The defence attorney said that while it is permissible for a witness to review his or her statement to refresh one’s memory before testifying, it is improper for witnesses to discuss their evidence together, or to do so in the presence of the prosecutor shortly before giving testimony.

Wildman relied on several English Court of Appeal decisions, including R v Skinner, R v Shaw, and R v Momodou, which warn against discussions between witnesses before they testify.

He told the court that the authorities make it clear that witnesses should give their own independent recollection of events, and that discussions about evidence between witnesses risk contaminating testimony.

Wildman argued that the circumstances in the present case were even more serious because the “closed door” meeting involved both another witness and the prosecutor.

He said the witness’s statement was reportedly placed on the table and discussed among those present, which he said could influence the evidence that would later be given in court.

The attorney further contended that such conduct could undermine the fairness of the trial and the constitutional right of the accused to a fair hearing.

Wildman also submitted that anyone who engages in discussions that influence or alter a witness’s testimony risks interfering with the administration of justice and could be charged with perverting the course of justice, based on common law principles.

He urged the court to rule that the witness’s evidence was “incurably bad” and should be excluded entirely from the proceedings.

Wildman also suggested that the court may need to consider how the trial should proceed in light of the issue, noting that the six accused officers are entitled to a fair trial before an impartial tribunal and further, that the prosecutor and the Crown’s case are both “untenable”.

“I can’t see how this case can continue in the situation that the prosecutor has created,” Wildman said, while submitting that the eyewitness is a trained witness who was selective in her memory.

Sergeant Simroy Mott, Corporal Donovan Fullerton, and constables Andrew Smith, Sheldon Richards, Orandy Rose and Richard Lynch are currently on trial for murder in connection with the January 12, 2013 fatal shooting of Matthew Lee, Mark Allen and Ucliffe Dyer.

The female eyewitness testified that she saw police personnel chasing one of the men who exited the vehicle with his hands raised, ran and jumped a wall, before he was shot to death.

The witness, who observed parts of the incident from the window of her third-floor apartment, said she also saw two other men. One was standing outside a Mitsubishi Outlander with what appeared to be paper in his hand and another was sitting toward the back of the vehicle. She later saw both men lying lifeless on the ground.

Wildman is to respond to Pyke’s argument today.

tanesha.mundle@gleanerjm.com