The judge erred - Attorney says device and CD should have been in evidence
Published:Friday | November 23, 2018 | 12:00 AMNickoy Wilson/Gleaner Writer
A defence attorney yesterday told the Court of Appeal in downtown Kingston that a trial judge erred when she made a judgement in the trial for Demetri Hemmings based solely on the digital forensic report by an analyst from the Major Organised Crime and Anti-Corruption Agency (MOCA).
Hemmings, who is appealing his conviction, was found guilty of possession of identity information in the Trelawny Circuit Court on March 10, 2017.
Queen's Counsel Carolyn Reid-Cameron, who is representing the appellant, also told the court that the judge should have ordered that the compact disc (CD), which is said to contain all the data purportedly downloaded from an iPad, said to be owned by her client, and the device itself be adduced into evidence.
She also said that the judge failed to establish the relationship between her client and the information allegedly found on the device.
"There was no or no sufficient nexus evidentially that was made by the Crown between the appellant and the material that was utilised to come to the conclusion that he was in the possession of identity information. The particulars of the attachment, which was never seen by human eyes, was never opened to the trier of fact to confirm that there was identity information therein," said Reid-Cameron.
The defence attorney also said that there was no evidence led as it related to the appellant being the holder and owner of the email address and pointed out that there were ways that this could have been done.
NO EXPLANATION WAS GIVEN
However, acting Deputy Director of Public Prosecutions Sophia Rowe said that the judge made no such error in law when she did not order that the compact disc or iPad be adduced into evidence.
She contested that the forensic analyst who made the report could have been made available for cross-examination if there were any questions related to the reliability of the report.
Rowe also said that utterances made by the appellant after he was cautioned were used by the judge to establish the relationship between him and the device and, by extension, the data.
But Justice Patrick Brooks, one of three judges on the panel, took issue with the fact that no explanation was given by the Crown for the absence of the CD or iPad. He also said that the absence of those materials would leave the judge with only the expert opinion to work with.
President of the Court of Appeal Justice Dennis Morrison also chimed in and said, "There must be some basis on which to test the expert's conclusion."
A decision in the appeal is expected on December 14, 2018.