A defendant behind bars for nine years awaiting trial for the alleged murder of his cousin for which the main witness, who is also a relative, “died violently” after being threatened to drop the case, was denied bail by Supreme Court Judge Leighton Pusey on Thursday.
The accused, Shane Harris, was charged in 2013 along with Rasheed Williams and Andre Miller for murder, illegal possession of firearm and shooting with intent. Harris and Williams are behind bars while Miller has been out on bail. The three allegedly were behind the shooting death of a man who is Harris’s cousin. That murder was supposedly witnessed by the dead man’s brother who provided witness statements to the police but was later killed following threats on his life allegedly by a brother of Harris, who is their cousin.
Appearing before Supreme Court judge Justice Leighton Pusey in downtown Kingston on Thursday, attorney Vincent Wellesley, who represents Harris, had asked the judge whether there could be “special consideration” for the matter to be tried in 2023 as his client had been behind bars for nine years.
Wellesley, in being told that the nearest available date was September of 2025, said, “My client is insisting that I ask for a little bail.”
The attorney, on being quizzed by the judge as to whether he wanted to make a formal bail application, said he did not want to address the circumstances of the case as to do so would be ‘alerting the Crown’.
“When one looks at the statement given by the witness who is now deceased, identification is a direct issue. Credibility is a live issue when he speaks of the men; at no time did he give any time in which he saw the person he referred to as Mr Harris’ face. Mr Harris was never placed on an identification parade and so identification is a live issue,” Wellesley argued. He was referring to a 2013 statement by the witness in which he said, ‘I got a good look at all of them for over a minute, because I looked at them to make sure that it was them and when I make them out clearly, I called out to them.’
“There is no specificity as to the time he saw each person and what part of each person’s body he saw, so although he has called the name of my client, we can’t say it is this Shane Harris,” Wellesley contended.
The judge, in asking Wellesley whether he had drawn his conclusion based on the contents of one statement, went on to question the attorney about the threatening phone call the witness allegedly received from Harris’s brother.
“We don’t know if Shane Harris had a brother and we don’t know if that is true — the issue of voice recognition would arise,” Wellesley said.
Justice Pusey, in denying the application, said, “I have to take into consideration the fact that the witness here, who is the brother of the deceased, who is the subject of this case, was killed violently and was threatened.”
“Not by my client,” Wellesley interjected, to which the judge retorted, “Of course not, not by this Mr Harris.”
“No Milord, the witness made mention that somebody called him and that person purported to be Mr Harris’s brother,” Wellesley prevaricated.
“Who is also named Harris, whom he knows is his relative,” the judge pointed out.
“You are saying I must reject it because there is nothing else that supports it, you are saying that I must say it is a coincidence that the subject died, that the eyewitness was threatened by someone with a similar name as your client and that eyewitness has now been killed and I should… happily have Mr Harris get bail?” the judge probed.
“That’s not what I am saying. Your Lordship has not been given anything by the Crown to create a nexus between the death of the eyewitness and Mr Harris and someone who purports to be related to Mr Harris; it was never said,” Wellesley insisted.
The judge, in pointing out that he could not discard evidence held by the court without counter-evidence being provided, said, “What I am saying to you is, we can’t gamble with people’s lives — neither the life of the accused nor others in a circumstance where a witness was killed and where the witness was threatened by a relative of the accused, who said, don’t give evidence against my brother… a prudent court would be very unwise to offer bail in those circumstances because there would be no means of ensuring that if there is any such likelihood of interference with witnesses that the witness would be protected.”
Said Justice Pusey, “I can only act on the evidence I have before me; it would he highly unwise for me to do that even in circumstances where there are matters [in] which less volatile accused persons disappear.”
Several consultations later an agreement was reached for the matter to be tried by judge alone instead by a judge and jury, and the time set to June 2024 instead of 2025.
Wellesley’s client was remanded along with Williams, while Miller had his bail extended.