KARTEL APPEAL DOCUMENTS PART 4

[98] In respect of the text messages between Mr Williams and his girlfriend, Ms
Jackson, the judge found that they were admissible as a relevant part of the events of 16
August 2011, as they unfolded.
[99] The judge did rule certain items of text messages and voice notes to be
inadmissible. He did so on the basis that the source of each was unknown (Vol IV, page
2247 of the transcript).
Submissions
[100] The submissions on behalf of the appellants in respect of these matters are dealt
with as a composite. This is partly for convenience and partly because counsel for each
appellant adopted the submissions, made by their colleagues for the other appellants.
[101] Learned counsel for the appellants addressed all the technology related aspects of
the prosecution’s case. The admission into evidence of the technology items, learned
counsel submitted, depended on the proof of their integrity. The integrity of those items,
they submitted, must be shown, beyond reasonable doubt, to be intact. The issue of
integrity of potential evidence, they argued, is one for the decision of the judge and not
for the tribunal of fact.
[102] They submitted that the integrity of these items is demonstrably flawed. The
unexplained usage of the exhibit 14C instrument, they submitted, necessarily means that
the integrity of exhibit 14C, as a composite, is compromised. Learned counsel argued, in
respect of the exhibit 14C instrument, and the data extracted from it, that none was the
same as was allegedly taken from Mr Palmer (page 95, paragraph 17, of counsel’s skeleton
arguments).
[103] Allied to that submission, learned counsel stressed that the evidence concerning
the SD card was crucial to demonstrating the unreliability of the exhibit 14C instrument.
Learned counsel pointed out the absence, prior to Sergeant Linton’s testimony in court,
of any mention of the presence of an SD card. This, it was submitted, was despite evidence
by persons who would have had an opportunity to see the SD card, prior to examination
by Sergeant Linton, and to record its presence. There was evidence by:
a. Corporal Pitt, who testified that he had to open the
back of the phone, where the SD card would have been
located, in order to record the instrument’s
International Mobile Equipment Identifier number
(IMEI) and the presence of a SIM card;
b. Corporal Howard, who received the phone from
Corporal Pitt, and was obliged to log all that he had
received; and
c. Sergeant Linton, himself, who is said to have had at
least three occasions in his written statements, prior to
the start of the case, to have recorded the presence of
the SD card.
[104] As a result of the defects in the integrity of these items, learned counsel submitted,
they should not have been admitted into evidence. The questionable integrity of the data,
learned counsel submitted, was amplified by the fact that Sergeant Linton testified that it
was possible to manipulate the contents of the data on the phone and on the SD card.
[105] Learned counsel submitted that the cases that speak to the chain of custody, not
being a requirement in law, but instead an issue of fact, did not apply to exhibit 14C.
Cases such as Damian Hodge v R, Chris Brooks v R and Garland Marriott v R,
learned counsel argued, only contemplated a break in the chain of custody, and no more.
The difference with this case, learned counsel submitted, is that it has been demonstrated
that the integrity of the exhibit has been compromised. That factor, on their submissions,
went beyond the scope of the decision in Damian Hodge v R, Chris Brooks v R and
similar cases. This case, learned counsel argued, is similar in this respect to Heron
Plunkett v R [2015] JMCA Crim 32.
[106] The approach of learned counsel was that the data on exhibit 14C, by virtue of its
association with the phone, ought not to have been seen by the jury. The argument was
not, however, entirely consistent. Firstly, learned counsel for Mr Campbell very candidly
made the observation that “exhibit 14C is bifurcate, simply by reason of being a cellphone” (page 95, paragraph 16, of counsel’s skeleton arguments on behalf of Mr
Campbell). Counsel’s point was understood to be that the exhibit 14C instrument had a
separate identity from the data said to be in its internal storage and on the SIM and SD
cards in the phone.
[107] Despite that observation, however, learned counsel stressed the point that from
the mere fact that there was an admission that the instrument “was used to make
telephone calls and send a text message, while in the custody of the police, it follows that
data had been added to the device, and was thereby ‘altered’’, after collection and prior
to production in court” (page 95, paragraph 16, of counsel’s skeleton arguments on behalf
of Mr Campbell). By tampering with the data on the phone, learned counsel submitted,
the phone became “something new”. By that argument, the instrument and the data
thereon constituted a single unit.
[108] Learned counsel contended that the disclosure of the improper interference with
exhibit 14C raised the “lurking doubt, which has now poisoned the verdict of the jury, [as
to] what else was done to the phone between the collection of the exhibit and its analysis,
while in the custody of the police” (paragraph 17 on page 96 of the submissions on behalf
of Mr Campbell).
[109] Additional submissions were made in respect of the admissibility of the items of
data, which were said to have been found in the internal storage of, and the SD card
found in, the exhibit 14C instrument. The submissions expanded on the objections, which
were made at the voir dire, to the admission of the video file on exhibit 14C. They also
advanced other bases for opposing the admission of the video file.
[110] Mr Fletcher, appearing for Mr Jones, submitted that the images on the video were
so indistinct that the probative value of the video was outweighed by the prejudicial effect.
[111] In addition to the arguments about the content of the video, learned counsel
contended that the metadata in respect of the video showed that, when it was created on
16 August 2011, at 10:34:02 pm, Mr Palmer was, on the prosecution’s case, by other
evidence, elsewhere.
[112] The integrity of the data, on the submissions on behalf of the appellants, had
thereby been compromised and rendered both the instrument and the data thereon
inadmissible as neither the instrument nor the data were the same as they were when
they were taken from Mr Palmer (page 95, paragraph 17, of Mr Campbell’s counsel’s
skeleton arguments). Additionally, learned counsel submitted that the exhibit 14C “cannot
be analysed in isolation of the context within which it was relied on by the prosecution”
(page 103, paragraph 28, of counsel’s skeleton arguments).
[113] Messrs Taylor and Brown, for the Crown, addressed these issues in response. They
argued that exhibit 14C was properly admitted into evidence. They stressed that proof of
continuity is not a legal requirement and that the issue of the authenticity of exhibit 14C,
as with the other exhibits, was a question of fact for the determination of the jury. Learned
counsel contended that there was no basis to treat the exhibit 14C instrument, the SIM
and SD cards, and the data on each, as exceptions to the principle set out in Damian
Hodge v R.
[114] Learned counsel accepted that in order for any exhibit such as 14C to be
considered by the jury, there was a minimum standard that the prosecution had to satisfy
as to its integrity. They argued that the prosecution, in this case, had satisfied that
standard. Learned counsel argued that a number of factors supported the judge’s decision
to admit the items into evidence. Some of those are:
a. the accounting for the custody of the exhibit 14C
instrument from the time it was taken from Mr Palmer
to the time that it was examined by Detective Sergeant
Linton;
b. the unique IMEI number of the exhibit 14C instrument
which confirmed that the instrument examined by
Sergeant Linton is the same instrument that was taken
from Mr Palmer;
c. Detective Sergeant Linton’s evidence that he saw the
SD card inside the instrument when he first saw it on
3 October 2011;
d. the fact that the BB messages relied upon by the
prosecution:
i. are unique to the exhibit 14C instrument as
shown by its individual BB PIN; and
ii. were created before the dates of the
unauthorised use of the phone;
e. the voice notes and the video, relied upon by the
prosecution, are all date and time stamped and all of
those dates preceded 3 October 2011, which is the
date of the unauthorised use of the instrument;
f. the local communications provider did not have access
to the BB messages contained on the instrument; and
g. there is no evidence of any alteration or manipulation
of the date and time stamps or the contents of the
voice notes, video or BB messages.
[115] Learned counsel submitted that the evidence that it was possible for the date and
time stamps and other data to be manipulated by a skilled person, did not prevent exhibit
14C being admitted into evidence. Whether such manipulation did in fact take place, he
submitted, was an issue for the consideration of the jury. It is not sufficient, learned
counsel submitted, for the appellants to raise possibilities on appeal, they must go further.
Learned counsel relied on R v Lao (1973) 12 JLR 1238 and Miller v Minister of
Pensions [1947] 2 All ER 372 in support of that submission.
[116] The absence of any mention of the SD card in Sergeant Linton’s first written
statement, learned counsel submitted, was an issue of fact for the jury and it was open
to the jury “to infer that the SD card was inside the Exhibit [14C] when it was transferred
to [CFCU]” (page 3, paragraph 7c, of counsel’s skeleton arguments filed on 12 July 2018).
[117] Similarly, learned counsel argued, the use of exhibit 14C to send a text message
and to make three telephone calls, while it was in the possession of the police, was not
fatal to the integrity of exhibit 14C, but raised “questions of reliability for the consideration
of the [j]ury” (page 3, paragraph 8, of counsel’s skeleton arguments filed on 12 July 2018).
Analysis
[118] The law in respect of the chain of custody of an item sought to be admitted into
evidence has been outlined above. There have also been judgments of this court that go
beyond that general outline. Phillips JA did so in the judgment in Heron Plunkett v R.
The essence of the learning distilled in that case is that:
a. the issue of chain of custody of an exhibit is a question of
fact for the jury, as explained in Damian Hodge v R;
b. the prosecution must, however, prove the integrity of the
item before it can be admitted into evidence; and
c. where there is a break in the chain of custody, combined
with a doubt as to the integrity of the potential exhibit, the
item ought not to be admitted into evidence.
[119] As a part of her analysis of the relevant law, Phillips JA cited, with approval, the
judgment of Lai Kew Chai J in delivering the judgment of the Singapore Court of Appeal
in Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR 103; [2005] 5 LRC 140. Lai
Kew Chai J said at paragraph [36]:
“The principles relating to the chain of custody of exhibits in
evidence are settled. The Prosecution bears the burden of
proving beyond reasonable doubt that the drug exhibits
analysed by Dr Lee Tong Kooi of the HSA were the same as
those seized from the appellant’s back and haversack. Where
there is a break in the chain of custody and a
reasonable doubt arises as to the identity of the drug
exhibits, then the prosecution has not discharged its
burden, and has failed to make out a prima facie case
against the accused…” (Emphasis supplied.)
[120] In applying that learning to this case, it must be noted that the judge seems to
have adopted the approach that the items of communication data could be considered
individually, as also the video. In this regard, although he recognised that the exhibit 14C
instrument had been used while it was in the custody of the police, that use, he found,
was capable of being identified and isolated.
[121] That approach, it seems, addresses the essence of the distinction between the
positions of the appellants and of the Crown in this aspect of the appeal. Whereas the
appellants stress the combination of:
a. breaks in the chain of custody;
b. unauthorised use of the instrument, evidencing those
breaks; and
c. the evidence that it is possible for the data to have
been manipulated during the course of such use,
and treat exhibit 14C as a composite, the Crown contends, firstly, that the instrument
and the data relied upon by the prosecution, cannot be considered as a whole, but should
be looked at individually, and secondly, that the data do not show any evidence of
manipulation.
[122] That is also the essence of the difference in the results of the previously decided
cases, cited above, dealing with breaks in the chain of custody. Whereas in Chris Brooks
v R and Garland Marriott v R, there was no evidence of any tampering with the relevant
samples, the situation was different in Heron Plunkett v R, where there was obvious
interference with the sample, in that case, parcels of vegetable matter, between the time
it was taken from the accused and the time that it that was taken to the forensic laboratory
for testing.

[123] The question at this juncture is whether a distinction may properly be drawn
between the material in this case and that in Heron Plunkett v R. The answer to that
question is, as identified by the judge, in the affirmative. The basis for the distinction is
that each item that the prosecution sought to rely upon, namely, the video, the voice
notes and the BB messages, had a unique identifier, that is, a date and a time stamp. It
is possible therefore to examine each of these items to determine its admissibility and
relevance to the case. Consequently, a distinction may properly be drawn between those
items and the items which were created by the use of the exhibit 14C instrument after it
fell into the custody of the police. Importantly, as the judge found, there is no evidence
of tampering with either the date or time stamps of the items relied upon by the
prosecution. A mere possibility that there could have been a manipulation of those items
is not sufficient to disqualify those items from the consideration of the jury.
[124] The submissions of counsel for the appellants, with respect to the exclusion of
exhibit 14C, as a composite, cannot be accepted. The fact that the exhibit 14C instrument
was improperly used while in the custody of the police is too slender a basis to exclude
the rest of the evidence comprised in the composite. If, as can be credibly contended, the
exhibit 14C instrument may be considered separately from the data thereon, then it
necessarily follows that each aspect of the data should be considered on its own merit.
That which is caught by the improper use must be discarded, but unless there is evidence
suggesting tampering with or adjustment of other data, they should be available for the
consideration of the jury.
[125] It must be noted that there is evidence that one of the BB message files was
modified after the exhibit 14C instrument was taken by the police. Sergeant Linton
testified that the file containing the communication between that instrument, and the
phone bearing the unique PIN 22C4DB97, was modified on 30 September 2011 at 8:54
am; some three hours after it had, on the prosecution’s case, been taken from Mr Palmer.
Sergeant Linton testified that the modification consisted of the last entry on the file (Vol
VII, page 3794 of the transcript). That entry was an incoming message from the
Blackberry bearing PIN 22C4DB97.
[126] Despite that modification, the Sergeant’s testimony is that the file containing the
exchange of messages between those instruments was created on 6 July 2011 and that
the messages in that file, upon which the prosecution relied, were sent on 19 August

1. That evidence allows for the messages in that file to be individually considered, so
   that the insertion of the last entry must be determined to constitute a discrete event,
   which does not eliminate the rest of the messages in that file from being considered for
   admission into evidence.
   [127] There is sufficient basis, therefore, for the judge to have arrived at his decision in
   respect of each of these issues. The judge’s decision is bolstered by Mr Chow’s
   identification of Mr Palmer’s voice, not only in the voice notes but in the video.
   [128] The appeal in respect of the admission of exhibit 14C, as a composite, should fail.
   (c) Exhibit JS2
   [129] The evidence concerning the creation of exhibit JS2 commenced with a request
   made by the police to Digicel. Corporal Shawn Brown, testified that he made the request
   of Digicel for communication data. He did so after having received a briefing from the
   investigators in this case, and having read a statement by Mr Chow. That statement
   included references to various persons and their respective telephone numbers. The data
   that Corporal Brown requested was in reference to the calls made to and from various
   telephone numbers deemed relevant to the case.
   [130] Mr Joseph Simmonds is the group business risk director at Digicel. Acting in
   pursuance of Corporal Brown’s request, Mr Simmonds extracted the relevant data from
   Digicel’s computers and downloaded them onto two CDs. He marked one of the CDs “JS1”
   and the other “JS2”. JS1 was intended to be the master, or control copy, and JS2, the
   working copy. He said the CDs were made almost simultaneously and their contents were
   identical.
   [131] Mr Simmonds delivered both disks to Corporal Brown, but only JS2 was available
   at the trial. Corporal Brown said that he delivered JS1 to one of the prosecutors in charge
   of the case. Sadly, that person died before the case was tried and so was unable to give
   any information as to the whereabouts of JS1.
   [132] Corporal Brown used the data from JS2 to create a spread sheet attributing names
   and aliases to the various persons sending and receiving communication. The
   communication involved, the prosecution asserted, is relevant to Mr Williams’ death.
   [133] The issue of the breach of the ICA arose from the fact that the request to Digicel
   and the provision of the data requested were not done in accordance with the ICA.
   Corporal Brown was not authorised, under the ICA, to either request or receive the data.
   Additionally, the notice requesting the data, that is required to have been issued by the
   police to Digicel, was not issued. The provisions of the ICA could not, therefore, have been
   prayed in aid to have data, which were obtained from Digicel, admitted into evidence.
   [134] Defence counsel complained, at the trial, that the data on JS2 were inadmissible
   as having been acquired in breach of the fundamental right to the protection of privacy of
   communication guaranteed in the Charter of Fundamental Rights and Freedoms (‘the
   Charter’) contained in the Jamaican Constitution. It bears repetition that there is no
   admission by any of the appellants of the relevance to them of any of the material referred
   to in JS2.
   [135] The judge ruled, in respect of the data secured from Digicel in breach of the
   provisions of the ICA, that the common law allowed the admission of JS2. This is so, even
   in the face of a breach of the Charter. He found the material to be relevant and ruled it
   admissible.
   [136] The appellants’ complaints in respect of exhibit JS2 are twofold. The first
   complaint, without any admission of the authorship of the communication, is that the data
   provided by Digicel, which are on JS2, were obtained in breach of the ICA and of the
   constitutional right to privacy. The second issue is that there were doubts about the
   provenance of JS2 and that it ought not to have been admitted into evidence.
   [137] It is regrettable that the prosecution, in this case, should have found itself in the
   same position in which it was, in Donald Phipps v R [2010] JMCA Crim 48, where a
   flawed approach, similar to Corporal Brown’s, was assessed by this court. In both cases,
   the Crown’s representative was obliged to concede to this court that the procedure used
   was flawed. The situation prompted the judge to appropriately observe that, “[c]learly,
   the authorities are not learning anything from this” (Vol IV, page 1942 of the transcript).
   [138] In Donald Phipps v R, Morrison JA, as he then was, in writing for the court,
   made a number of important points, two of which are relevant to this case. Firstly, he
   cited Attorney General and Another v Antigua Times Ltd (1975) 21 WIR 560, 573-
   4, for the principle that it should be presumed, until the contrary appears or is shown,
   that all Acts passed by the Parliament are reasonably required. As a corollary to that
   principle, the learned judge of appeal also cited with approval, Dwight and Keva Major
   v Superintendent of Her Majesty’s Prisons and the Government of the USA,
   (unreported) Court of Appeal, The Commonwealth of the Bahamas, Appeal No 15/2005,
   judgment delivered 8 March 2007. In Major v Superintendent of Her Majesty’s
   Prisons, Ganpatsingh JA characterised interception of communications as “an
   indispensable means used by law enforcement and intelligence agencies to combat serious
   crime”.
   [139] It is in that context that Morrison JA found that Mr Phipps had not rebutted the
   presumption that the ICA was within the ambit of this country’s Constitution, as being
   reasonably required for our society. He said in part, at paragraph [112] of Donald Phipps
   v R:
   “We entirely agree and we therefore conclude on this point
   that the burden on the applicant [Mr Phipps] to rebut the
   presumption that the ICA is a measure reasonably justifiable
   in our democratic society has not been discharged.”
   [140] The second important point made by Morrison JA, for these purposes, is that where
   the requirements of the ICA had not been followed, material which had been secured by
   virtue of the flawed procedure, although not allowable under the provisions of the ICA,
   could nonetheless still be admissible. The learned judge of appeal found that reliance, for
   admission, had to be made on a “wider principle” (paragraph [118] of his judgment). In
   circumstances where the complaint about the admissibility of evidence was materially
   identical to those in this case, Morrison JA assessed a number of previously decided cases
   and concluded, at paragraph [121], that the common law principles of admissibility of
   evidence, based on relevance, applied. He said, in, part: