Chief Justice Bryan Sykes has laid the blame for the hiccups being experienced by the prosecution in getting the court to hear the secretly captured recordings of conversations between alleged members of the Klansman gang squarely at the feet of the lead investigator.

“The problem that you are having, you know, is that this is lazy man work that went on here; that’s the basic problem here, you know, because the investigator did not do what was required of him and this is a situation in which the technological capability was available,” the chief justice said Thursday in a bruising criticism of the cop who risked life and limb by posing as a relative of a gang member and entering the Klansman’s lair to collect guns and ammunition in building the case against the criminal organisation.

The chief justice’s blistering remarks came while a representative from the Crown was making the legal submissions requested by the judge to satisfy the tribunal that the phones used in the recording of those conversations meet the admissibility standards under the Evidence Amendment Act 2015.

The submissions became necessary after several admissions made by a cyber incident response specialist, who had told the court that in 2019 he conducted digital forensic examination on the three handsets — a black Alcatel, a black Vonino XY10Z, and a grey Samsung — which are key to the matter and that he produced a report following the examination of the gadgets, all of which have been successfully tendered and admitted into evidence.

However, in being asked by the chief justice whether he had done any analysis to see where the audio on the phone originated, the expert witness said he had not. According to the witness, this was because the compact disc that he prepared had actually been done to get feedback from the investigator, hence the reason it was marked “Not for court”. He said upon receiving that feedback, the in-depth analysis would have been conducted, which would encompass the details the chief justice was querying. According to the witness, the results of that analysis would then have been presented in the final report in order to produce a final evidence package which is what would have been presented to the court.

He, however, told the court that in this case that final analysis was not done by him as he did not get the complete feedback from the investigator in order to create the final evidence package, and he had also left the Jamaica Constabulary Force before the feedback was given.

On Thursday, the chief justice, who indicated that he will be making his ruling on the issue next Monday, said, “…This is not a case where the police didn’t have the technical competence, it’s not a case that they didn’t have the wherewithal or the know how or the equipment, it’s a question of the investigating officer just getting the thing and deciding to take some short cut.”

In the midst of his chastisement the trial judge also made this cryptic observation:

“Now, as to whether the statutory standard is still met is another question, but that is essentially the problem that you are having.”

The prosecutor who was making the submission replied, “Yes, Mi’lord, we are totally in agreement with that,” but added “what we are saying is that in the absence of a report from an expert, Mi’lord, we still have left a witness who speaks to his operations of the device.”

The Crown, in its arguments Thursday, asserted that it had met its burden of proof by calling the witness (number 1) and the computer expert.

“We posit that the testimonies of [both] have met the standards of the Act by being oral evidence from which it can be inferred that the computers, at the time of the recordings, were in good working order. These recordings were listened to and transcribed by police officers who prepared transcripts. The prosecution is asking the court to consider the evidence of (witness number one). He himself downloaded the recording application on each phone and set it to record automatically, and each time he made a recording he was able to access that recording and further send that recording to the investigating officer,” the Crown stated.

“We further submit that at no point in the evidence was it revealed that these recordings were in any way interfered with or that the witness was unable to access them, having initially made them,” the Crown said, going further to argue that the fact that the witness was able to identify these same recordings in the form of extractions on a different device the court should apply the presumption that at the time the recordings were being made the device that he used then was in good working order.

In the meantime, attorney Lloyd McFarlane, who represents the alleged leader of the gang, Andre “Blackman” Bryan, in his submission argued that the prosecution had not proved its case in that respect as it “relied heavily on the evidence of the computer analyst who, under questioning by the court, conceded that his report did not determine if there was any malfunction of the software at the time of the recording”.

Charging that “the prosecution has come up short”, he said the court “still requires some clear evidence, either that at all times the devices were operating properly or that at the time they were not operating properly, their accuracy was not affected”.

“An inference is not enough, the burden is not satisfied,” he declared.

Meanwhile, Justice Sykes, referring to a 1989 case, said the argument advanced by the Crown is not unusual or odd. The trial judge, in adjourning the sitting, stated that he has been looking at case law and will be looking further.

“I will let you know what I think on Monday,” he stated.

Witness number one, a former gang member turned Crown witness, had testified that he turned over to the police three phones, two of which were given to him by the cops, with recordings of conversations between himself and members of the gang, including Bryan.

The witness, who said he started working with the police undercover in 2018 to help dismantle the gang while Bryan was incarcerated, had told the court that the third handset was given to him by a member of the gang on Bryan’s orders.

He said he downloaded a call recording app to automatically tape multiple cellphone conversations which were also saved. He forwarded the recordings to cops when the memory became full.