Tesha Miller eyes Privy Council

Tesha Miller’s legal team is weighing the possibility of taking his case to the Privy Council, after the Court of Appeal quashed his convictions for accessory to murder but ordered a retrial.

The appellate court, in a judgment delivered yesterday, found that a fundamental error in jury selection rendered Miller’s original trial a nullity.

The panel of judges, Justices Jennifer Straw, Nicole Foster-Pusey, and David Fraser, ruled that the trial judge erred in limiting Miller to two peremptory challenges during jury empanelling, when the law entitled him to four.

However, defence attorney Bert Samuels expressed concern about the retrial order, indicating that the defence is considering further legal action.

“We are concerned that, based on the retrial order, we may take this matter to the Privy Council because we are of the view that we have very good grounds on which the court ought not to have ordered a new trial,” he said, declining to publicly share those grounds.

Miller, who was convicted in December 2019 in the Home Circuit Court for his role in the 2008 murder of Jamaica Urban Transit Company Manager Douglas Chambers, had been sentenced to 38 years and nine months for accessory before the fact, and 18 months for accessory after the fact, with both sentences to run concurrently.

PERSONAL AND PROFESSIONAL VINDICATION

Samuels, who represented Miller at trial and consulted on the appeal, described the Court of Appeal’s decision as a personal and professional vindication.

“I was attempting to go on to my third challenge of the jury when I was stopped by the judge because I thought, and I’ve been proven right by the Court of Appeal, that I had four challenges,” he said.

While the acquittal on the accessory-after-the-fact charge was immediate, the order for a retrial on the accessory-before-the-fact charge leaves Miller’s fate uncertain.

The Court of Appeal also noted the nearly 18-year delay between the offence and trial, which defence lawyers said had hindered Miller’s ability to recall alibi details and resulted in the loss of potential witnesses.

However, the court determined that the seriousness of the offence, the strength of the Crown’s case, and the availability of key witnesses outweighed those concerns.

The retrial has been ordered to commence within six months of the conclusion of Miller’s ongoing proceedings in the Supreme Court, with a failure by the prosecution to meet this timeline potentially resulting in a stay of proceedings.

In a detailed 84-page judgment, the Court of Appeal quashed Miller’s convictions for accessory before and after the fact to murder and ordered that he be retried on the more serious count.

The panel said: “Based on the penalty imposed by law for that offence… the applicant was entitled to four peremptory challenges and not two,” adding that the denial of that right compromised the integrity of the jury and rendered the proceedings unfair.

The appellate court agreed with the defence that the charge of accessory before the fact to murder carries a minimum sentence of 15 years under the law, thereby entitling the accused to four peremptory challenges under the Jury Act.

CROWN’S ARGUMENT REJECTED

It rejected the Crown’s argument that a lower threshold applied because Miller was charged as an accessory rather than a principal.

The court found that at least one juror who ultimately served had been specifically challenged by the defence, underscoring the prejudice caused. As a result, the trial was declared a nullity. On the lesser charge of accessory after the fact, the court ruled that the two challenges allowed were correctly applied and, as Miller has already served that sentence, entered a verdict of acquittal.

Samuels, however, criticised the appellate court for not addressing several additional grounds raised on appeal, including allegations of unfair treatment during the trial, questions about whether the trial judge should have recused herself, and what he described as legal inconsistencies in the case.

Among those concerns, Samuels pointed to the acquittal of another individual on the substantive murder charge while Miller had been convicted as an accessory.

“That is a very curious legal concept… those are serious grounds,” he said.

Attorney Isat Buchanan, who represented Miller on appeal alongside John Clarke, also welcomed the ruling, noting that it demonstrated that “the integrity of the justice system remains intact and we believe in the Constitution and know that justice works as long as the Constitution is respected”.

Buchanan, while also acknowledging that a further appeal remains possible, said “I would be hard-pressed to see how the prosecution would proceed in relation to a retrial in this matter.”

In the meantime, he emphasised that Miller, who has maintained his innocence, is focused on clearing his name in the ongoing gang trial.

While noting that he was yet to speak to his client, Buchanan said he was 100 per cent sure that Miller feels vindicated.

“And I will say to you, regardless of how anybody wants to, um, interpret, there have been many unfortunate attempts to, um, incarcerate Mr Miller who maintains that he is not a leader of any gang and gang evidence was led in the trial where it was quashed, where it ought not to have been led and many other issues, so he knew it was just a matter waiting on the judgment,” he said.

Buchanan, at the same time, credited Samuels for what he dubbed as “pristine representation”, while dubbing the ruling a vindication for him as well.

tanesha.mundle@gleanerjm.com