DPP wants retrial if Tesha Miller conviction overturned

Director of Public Prosecutions (DPP) Paula Llewellyn has urged the Court of Appeal to order a retrial if it finds reasons to overturn Tesha Miller's conviction for ordering the death of former Jamaica Urban Transit Company chairman Douglas Chambers in 2008.

Llewellyn says Miller's appeal has no "merit" but if the court finds any, it should allow the State to retry the alleged leader of the Spanish Town-based Clansman gang who was convicted on a charge of accessory before and after the fact.

The DPP made her assertions on Friday as the Court of Appeal completed hearing oral arguments in the case Miller has brought against his 2019 conviction. Miller, through his attorneys John Clarke and Isat Buchanan, has argued that he was found guilty in an unfair trial presided over by a biased judge, Georgiana Fraser.

“The prejudicial evidence led in this particular case was severely overwhelming, incurably wrong and unfair to the accused and that based on that, this court cannot be satisfied that at trial no miscarriage of justice had occurred,” Clarke told the three-member panel of judges this week.

Llewellyn has defended the judge for her "impeccable and extremely fair" conduct of the trial "notwithstanding provocation and occasional disrespect from counsel for the defence".

She said while the prosecution is "very positive" that the appeal will be dismissed, "experience has taught me that to be a good cricketer you must never rest on assumptions, lest because of bad light you misperceive the trajectory of the ball coming at you".

"Given the considerable and overwhelming evidentiary material that is available to the Crown and still would be, then we would ask that a retrial be ordered in light of the fact that though the incident occurred in 2008, Miller was only apprehended in 2018 October, and he was tried within a year," the DPP said.

"And since 2019, we have had the passage of about three years so the Crown, in terms of fairness and delay, would not be out of time in asking that the interest of justice would be best served for a retrial to be ordered."

Miller has rested his appeal on at least 13 grounds.

They included requiring the judges to determine whether Miller was properly charged and settling an interpretation on the selection of the jury. Miller has also taken issue with processes involving an ex-Clansman member who struck a plea deal and testified that he was at a meeting where Miller instructed Andre 'Blackman' Bryan to kill Chambers.

Noting that Bryan has been freed, Buchanan said the trial judge should have dismissed the case against Miller based on his interpretation of Section 35 of the Criminal Justice Administration Act.

The section says: "Whosoever shall counsel, procure, or command any Accessories before the other person to commit any felony, whether the same be a 1 act may be indicted as felony at common law, or by virtue of any Statute passed or 1 such or as substantive to be passed, shall be guilty of felony, and may be indicted felons and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted, as an accessory, may be punished."

Buchanan reasoned that "there can be no accessory before the fact after the principal has been acquitted" and that “the rule at common law, which is uncontroverted, is that where there is no conviction of the principal (Bryan), there can be no conviction of the accessory. When the law was codified, it did not upset the common law rule...”

Buchanan said the Crown had the option to charge Miller for murder but chose not to. While conceding that Bryan's indictment for murder mentioned "and others" he insisted that evidence was only led against Bryan.

The prosecution has a different view.

Crown Counsel Loriann Tugwell argued that Section 35 is a "discretionary provision" and "simply indicates the manner or the different options" that the prosecution has to indict an accessory. She pointed to the use of the 'may' in the clause.

Tugwell said the "seminal issue" for the court is whether Miller was prejudiced by being indicted for the lesser offence.

And the Court of Appeal will also have to settle a dispute over the interpretation of amendments to the Jury Act in 2015 and 2016.

The amendments allowed a person accused of non-capital murder or an offence that carries a mandatory minimum of 15 years in prison to challenge the selection of four jurors, without providing a reason. For lesser offences, the number of preemptory challenges is two. Accused in cases where the offences from the same facts are being tried together but have different sentencing regimes also get four challenges.

Miller's lawyers have argued that the judge wrongly limited Miller's challenges to two, instead of four.

But the prosecution is insisting that the judge did not make a mistake and that the view of Miller's legal team ignores the changes to the law.

"I believe there was a hint that they would have liked, through the backdoor, to say that because an accessory before the fact to murder can be, in certain circumstances, charged as a principal and therefore because murder attracts a mandatory of 15 years, therefore... they should have been allowed four challenges," she said, noting that the offences against Miller did not carry a mandatory minimum.

The court has given the DPP until June 23 to decide and file any submissions on whether parliamentary records should be called on to interpret the amendments.

Judgment has been reserved in the appeal which was heard by justices Jennifer Straw, Nicole Foster Pusey and David Fraser.

- Jovan Johnson

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