Spent shell inadmissibility blows hole in prosecution’s case

A HOLE was blown in the prosecution’s case when a spent shell said to be found on the scene in Diamond on April 13 was not successfully admitted into evidence in the case against Government Senator Ashelle Morgan and Assistant Director of Public Prosecution, Karim Nelson.

Police constable 952 Toppin was stationed at the Calliaqua police station when Cornelius John was shot in the leg at his property in Diamond, and he was a member of the party of officers on the scene.

He gave evidence on Tuesday, November 16 that he handed over the spent shell that had been found to the exhibit keeper, Sergeant 88 Bristol.

Before the prosecution, St Lucia’s Deputy Director of Public Prosecutions( DPP) S. Stephen Brette could question further, defence counsel Ronald Marks representing Nelson who had been charged with wounding and unlawful discharge of a firearm raised an issue.

The witness stepped out of the courtroom so that Marks could do so.

The counsel then argued that based on the evidence and the first statement initially given by the officer, there is a difficulty in establishing a nexus between him and the exhibit tag.

The Prosecution said that they could call the exhibit keeper at that stage to give evidence.

Duane Daniel, counsel for defendant Senator Ashelle Morgan who had been charged for criminal assault relating to the April 13 incident also noted, “I don’t see how this witness is going to identify where apparently there are no identifying marks made by the witness.”

The prosecution said that they did not know this as yet.

Marks commented that the extent of the officer’s evidence was that he had handed over the shell to the exhibit keeper.

The prosecution posited that albeit there was no statement from the exhibit keeper, she can be brought to state that it was produced and then the constable can be asked to say whether or not that was the same shell handed over to the exhibit keeper.

Daniel questioned, “how is the prosecutor going to cure it now, if this witness did not put an identifying mark on it. How can he subsequently identify from any other shell?”

Magistrate Bertie Pompey wanting to delve further into the circumstances surrounding the shell recalled the witness into the courtroom.

Brette asked the officer what he can tell the court about the exhibit tag on the item, and then who wrote the description on the tag.

The police constable said the exhibit keeper had written it.

He was asked if he knew who packaged the exhibit and he said the exhibit keeper.

When asked if he was present when all of that happened, he said no.

The defence again objected. “…Your honour clearly this was real slackness on their part,” Marks

said, because if something is found “efforts must be made to preserve its integrity that it’s not tampered with.”

He said the possibility of the evidence being tampered with is high, and if efforts aren’t taken to properly preserve the evidence then it is inadmissible.

“In terms of the packaging he is not the author of it,” Daniel stated. “… He is not in a position to now, unless he is a handwriting expert,” to even say that it is the writing of the exhibit keeper, the lawyer added. “…It’s practically incurable. All that he says is that he gave it to the exhibit keeper and he disappeared,” Daniel said, so he does not see how it can be put to the witness for identification purposes.

The prosecution argued that contrary to the defence saying it is incurable, it would not be prejudicial to have the exhibit keeper come and say what was handed to her and what was done with it.

Daniel countered that the incurable part was relating to this witness and his ability to identify the package.

Marks posited that their difficulty is that it seems the officer took the raw shell, gave it to the exhibit keeper and left because he was not there when it was packaged. “…Without there being an identification mark on the item itself, he can’t identify the item, he certainly can’t identify the package and we can’t open the package because we don’t know who sealed it.”

The magistrate agreed with the defence and said he would not admit the evidence “plain and simple”.

Pompey said he was quite willing to admit it “when they raised the objection of the unmarked shell.”

“I say once you can satisfy the court that he put it in the envelope and if the envelope is still intact, this is how I gave it to the exhibit keeper and this is how it is, it has not been tampered with…” the magistrate said, then the circumstances would have been such that it’s the same shell even though not marked.

However, the magistrate said, “He cannot give the spent shell to the exhibit keeper and in his absence the exhibit keeper labelled it, placed it in an envelope. How can you come now and say this is the same spent shell..?”

The magistrate upheld a no case submission made by the defense and Morgan and Nelson were acquitted of the charges brought against them at the conclusion of the trial on November 18.