The prosecution had brought in a Technical Manager from a local telecommunications company to speak to the contents of the file containing Daway’s call records. He told the court that Digicel provided the police with the records after the company received a warrant to do so.

The telecoms manager from Digicel testified that he would not have seen the files before it was sent to Jamaica as all records are stored at a central location in Jamaica. Once the police issue a warrant for call records, the information is sent to Jamaica and it is reviewed by Digicel’s legal team before sending the records to the police.

The manager told the court he would have seen the information at some point after. This became an issue for the defence counsel as they indicated it was a vague statement. The witness said the police visited him on March 22 this year to download the call records information and placed it on an empty pen drive.

He said he proceeded to upload the files onto the drive which he then handed back to the police — Detective Constable (DC) Calvin George — who placed it in an evidence bag and had him sign it.

In his ruling not to admit the phone records into evidence, Justice Floyd said he found it necessary for DC George who spoke to the Digicel manager to return and give testimony because the pen drive would be new evidence and the cop needed to speak to it. He added that it is a necessary component of continuity to hear from the police regarding the pen drive and their dealings with the Digicel technician.

However, Justice Floyd said there is an issue of late disclosure or non-disclosure because there is no statement from the police regarding their interaction with the Digicel worker. The judge said the Crown’s obligation to provide ongoing disclosure is fundamental and provides fairness in a trial.

He said the document might be admissible as evidence, but the court needed to reach that juncture first. He added that DC George had already testified in court but needed to clarify some things about the drive. However, the judge questioned ‘how can a witness be called back and maintain the principle of fairness?’

The judge said the defendants are unfairly prejudiced or disadvantaged when in receipt of late disclosure or lack of it and it is their right to object or ask for the evidence not to be tendered. Justice Floyd said he was convinced that the Digicel Manager cannot speak to the pen drive directly as it was given to him by the police.

He added that he was not prepared to recall DC George to speak to drive and he is therefore rejecting the submission to tender the pen drive into evidence, and he will forego his discretion to recall the cop to give more evidence.

DC George had appeared before the court last week to give evidence on the call records he obtained from Digicel. He told the court he placed the evidence on a DVD and placed it in an evidence bag which he had signed.

However, when shown the evidence bag and DVD, his signature was not on them and although he said he could identify it by his handwriting, the details of the content were written in all caps. Justice Floyd had ruled then that the witness was unable to satisfactorily identify the document and therefore, it could not be tendered into evidence or shown to the witness.