‘Piecemeal legislation’

The legal team appealing the 38 years at hard labour sentence for Tesha Miller, the alleged Klansman Gang faction leader who masterminded the 2008 murder of former chairman of the Jamaica Urban Transit Company (JUTC) Douglas Chambers, has slammed parliamentarians for a legal dilemma now facing the Appeal Court regarding Miller’s conviction.

“The issue in the particular case is not the fault of the learned DPP, and it is not the fault of the witness or the court at this stage, but the fault lies right at the foot of Parliament, who have done very little. They would not have done the research necessary when amending laws and they have left us in an unfortunate situation where their copying, cutting and pasting from other jurisdictions causes a piecemeal legislation to not signal to the court in clear language, what it is that they had intended,” defence attorney Isat Buchanan told the court in a closing submission on Wednesday.

Miller, who was charged with the offences of being an accessory before the fact and after the fact for the killing, was convicted in the Home Circuit Court in December 2019 and sentenced in January 2020 to 38 years and nine months’ imprisonment at hard labour. The sentence imposed on him for the offence of accessory after the fact was 18 months’ imprisonment at hard labour. The alleged shooter, Klansman lieutenant Andre “Blackman” Bryan, was, however, acquitted after a 6-1 majority verdict of not guilty was handed down in the Gun Court Division of the Home Circuit Court in 2016 following his trial there.

But Miller’s legal team has been contending that a no-case submission for Miller should have been upheld based on Section 35 of the Criminal Justice (Administration) Act under which he was tried.

The section states that, “whosoever shall counsel, procure, or command any Accessories before the other person to commit any felony, whether the same be a felony at common law, or by virtue of any Statute passed or to be passed, shall be guilty of felony, and may be indicted 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.”

Miller’s attorneys are arguing that a correct interpretation of the section is that an accessory before the fact cannot be properly convicted of that offence, unless the principal has already been convicted of the substantive offence. They said given the fact that Bryan — who was named on the indictment as the principal — was freed, Miller should have been released as well.

“We do submit that the conviction is made unsafe because it was made on an indictment that named a principal who had been acquitted,” Buchanan said.

In the meantime, in answer to questions from the panel as to whether Miller should now be tried for the murder of Chambers, Buchanan said this would be unconstitutional.

“The court would have to consider section 16, (9) of the Constitution in relation to this case, which makes it clear that ‘no person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted, shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal; and no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence’,” the attorney said.

“It is in that vein that your question is answered,” Buchanan argued adding, “the only way that Mr Miller could be tried for murder is if this court were to make a ruling that the indictment be amended on appeal and then permit the amended indictment to go to trial”. According to Buchanan, however, based on the law, the indictment cannot be amended at this late stage. He added that it was always open to the Director of Public Prosecutions during the trial to indicate that the Crown wished to try Miller as the principal as well as the accessory. To do so now, he said, would be “an abuse of process”.

He insisted further that there was no contemplation in Jamaica’s legislation of a circumstance where the main principal was acquitted.

And attorneys for the Crown who began their response to Miller’s attorneys were forced to request additional time to research further and place in writing their submissions on the issues raised about the relevant section of the Criminal Justice (Administration) Act.

The matter continues this morning at 9:30.