Monday D-Day for admissibility of secret recordings
Published:Friday | February 11, 2022 | 12:11 AMTanesha Mundle/Staff Reporter
Chief Justice Bryan Sykes is to rule on Monday whether he will accept the secret recordings of conversations of alleged members of the Clansman-One Don Gang following the prosecution’s submission Thursday that they have met the required standard of the Evidence (Amendment) Act, 2015.
The recordings, on which the prosecution is heavily relying to help prove its case against the 33 alleged gangsters and to corroborate the testimony of its two main witnesses, were captured by a former top-tier gang member using three cellular phones.
However, in order for the recordings to be accepted, it must satisfy Section 31(g), which requires evidence that the computer that was used to produce the document was functioning properly at all material times or that the malfunctioning of the machine did not affect the production and accuracy of the document.
The act also requires the prosecution to prove that there are no reasonable grounds for believing that the statement (recordings) is inaccurate because of the improper use of the computer, which in this case are the cellular phones.
The prosecution, during its submission, argued that the Crown is compliant with the requirements of the section as the phones were operating properly when the recordings were being made and that there was no malfunction that would jeopardise the evidence.
The prosecution argued that this is evident by the fact that the witness was able to access the recordings multiple times after they were made and send them to the investigator and, further, that the recordings were able to be played even after they were extracted from the phones.
“The prosecution further submits that at no point in the evidence it was revealed that these recordings were in any way interfered with, or that the witness was unable to access them after making the recording,” the prosecutor asserted.
The prosecutor further asked the judge to consider the testimony of the forensic analyst and to accept the inference that the phone and software used to record the conversations were in good working order.
Lloyd McFarlane, lead attorney for reputed leader Andre ‘Blackman’ Bryan, however argued that the prosecution has not met the required standards and that it has a serious burden to prove that the phones were working properly at all times.
The judge, who again berated the police for the investigation, dubbing the failure to provide the forensic expert with feedback for a complete report as “lazy work”, said that an inference could be made that the phones were working properly at the time of the recordings but agreed that the legislative standard has a higher bar.
The forensic analyst who had extracted the recordings from the phones testified that he did a preliminary report but resigned from the force while he was awaiting feedback from the investigating officer in order to complete the report.
Bryan and 32 other alleged gang members are being tried on an indictment with 25 counts under the Criminal Justice (Suppression of Criminal Organizations) Act and the Firearms Act.
The One Don Gang is a faction of the Clansman Gang.