SHOWTIME

The Home Circuit Court will today start hearing the much-anticipated secretly recorded conversations of alleged members of the Clansman-One Don Gang, including those of reputed leader Andre ‘Blackman’ Bryan.

The way was paved on Monday following a ruling from Chief Justice Bryan Sykes that the recordings had met the admissibility requirements of the Evidence Amendment Act, 2015.

The recordings were captured by a former top-tier gang member, who is one of the prosecution’s two star witnesses, using three cell phones.

The audio is being relied on by the prosecution to corroborate the testimony of its two main witnesses and to prove that the defendants were operating as a gang.

The prosecution, however, had faced numerous challenges in getting the recordings admitted into evidence.

The judge took issue with admissibility after he found several gaps in the testimony of the forensic analyst who had extracted the recordings from the three phones and placed them on a compact disc.

The expert witness, a former cop, told the court that he had only done a preliminary report, which had not included verifying whether the application used to do the recordings was malfunctioning at the time. However, he indicated that if the application was malfunctioning then, the recordings would not have opened or would have opened and crashed.

Following his evidence, the chief justice advised the prosecution that they would have to present arguments to convince him that the recordings had met the legal requirements. That hurdle was cleared, as the prosecution argued that there was nothing to suggest otherwise, as the witness was able to use the application multiple times and accessed the recordings which he sent to the investigator.

The defence, however, had disagreed.

Lead attorney Lloyd McFarlane, who is representing Bryan, argued that the prosecution’s submission does not satisfy the requirement of the act.

He rejected the argument that it could be inferred that the application was working properly based on the recordings’ capacity to be opened.

But Sykes, in his ruling on Monday, said that the evidence from the witness was sufficient to meet the statutory standards as the operation carried out by the witness did not require particular expertise or technical knowledge.

“We are living in an era where smartphones are as common as ever and software applications are more user-friendly and one can use a computer effectively without knowing the intricacies,” he said.

The judge added that the witness’ evidence that he had used the application frequently and had recorded enough material further showed that he had sufficient understanding of the application that he had downloaded and had configured to do automatic recordings of all conversations.

The judge also agreed with the prosecution’s submission that there was no evidence to suggest that the witness had tampered with the recordings.

The judge said despite the fact that the witness had confessed to being a criminal, being an accomplice did not disqualify him from giving evidence to establish the legal requirements.

Meanwhile, the defence made a last-ditch effort on Monday to convince the judge to reject the conversations.

Shortly before the ruling, attorney-at-law Alexander Shaw, who is representing the lone female defendant, Stephanie Christie, who is also reportedly featured on the recordings, argued that the forensic analysis did not authenticate or verify the application that was used by the witness or detail its features, which was posited as key to meeting the test of Section 31(g) of the act.

“The presence or absence of malware does not take away from the point that the app itself may contain a built-in feature that allows for modification,” Shaw said, noting that many call-recording applications have the capacity to alter material.

Shaw also submitted that there are inconsistencies between what was captured on the call log from Flow and the audio recordings.

However, the judge told him that he could not consider his point on the inconsistencies as the call log evidence was yet to be placed in evidence.

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.

tanesha.mundle@gleanerjm.com