Judge clears recording app of malfunction
Published:Wednesday | February 8, 2023 | 2:22 AM
The evidence presented in the Clansman-One Don Gang trial does not suggest that the recording application used to secretly capture conversations of alleged gang members had been malfunctioning, Chief Justice Bryan Sykes has said.
A former top-tier member of the gang and prosecution witness had secretly recorded conversations that he had with alleged then-cronies, including reputed gang leader Andre ‘Blackman’ Bryan, on three different cell phones, two of which were given to him by an investigator.
The witness had testified that he had downloaded a call-recording application.
However, the defence had taken issue with the fact that the police themselves had not installed the application on the phones to avoid corruption and were not certain about the exact application used or whether it was functioning properly at the time of use.
“There is nothing inherent in the pages that suggests that there are gaps in the conversation,” said Justice Sykes while looking at a 69-page transcript during summation on Tuesday.
“There is an internal consistency that suggests that there was no malfunctioning of the software that Mr … used.”
Furthermore, the judge said the law, in the absence of a technical authority, allowed for a person who uses the application frequently to attest to its functionality.
That lack of an impartial authority would not be fatal to the prosecution’s reliance on the recordings in helping to prove that the defendants were members of a criminal organisation.
Further, Justice Sykes said that it did not appear, on the evidence, that the witness had accessed technology that enabled him to create conversations between himself and the other alleged members.
Additionally, the judge said that the Crown submitted that even if there were inaccuracies and omissions in the transcript, those gaps did not alter the overall understanding of the exhibit.
“So as a historical record of the conversation, the Crown is saying it is not required to produce a document of perfection, and nobody does that, in fact,” the judge said.
The judge will continue the summation today.
Twenty-seven defendants are being tried on an indictment with 14 counts under the Criminal Justice (Suppression of Criminal Organizations) Act and the Firearms Act. Five others were earlier freed while another was killed while on bail last August.