Alleged crime victim baulks at testifying

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  • Josef Smith (Photo by Akil Simmons)

    Josef Smith (Photo by Akil Simmons)


A man accused of burgling a woman’s home while armed with a fake gun was cleared after the victim refused to testify and three police officers were unavailable to give evidence.

Puisne Judge Charles-Etta Simmons rejected an application by a prosecutor to let all four witnesses have their statements read into evidence instead.

She said it would not be in the interests of justice to let 24-year-old Josef Smith’s trial proceed in that fashion, and directed the jury to clear him.

Mr Smith was accused of breaking into a home on Long Ridge Pass, Devonshire, on January 3, 2012 with intent to inflict actual bodily harm on a person. Prosecutors alleged that he was armed with an imitation firearm at the time.

Police issued a press release at the time of the crime. It said they were notified around 3.25pm that “two men on motorcycles arrived at the home and one of the men gained entry, brandishing what appeared to be a firearm, while the other waited outside”.

It added: “The intruder briefly confronted a female occupant before leaving the premises. Both suspects left the area on separate motorcycles.

“No one was injured. Two persons of interest were subsequently arrested in connection with this incident.”

Mr Smith, of Warwick, was the sole person charged with the offence on January 17, 2012, when he was remanded into custody.

He later pleaded not guilty. A jury was sworn in on Monday to hear his Supreme Court trial, but the case was adjourned due to legal arguments.

During those arguments, prosecutor Nicole Smith applied under the Police and Criminal Evidence Act to have four witness statements read into evidence, rather than have the witnesses attend Supreme Court in person.

Defence lawyer Elizabeth Christopher objected to the applications.

Making her application in respect of the complainant in the case, Jazmin Minors, Ms Smith asked that a recorded police interview done with Ms Minors on the day of the crime be presented to the jury.

She said Ms Minors did not wish to give oral evidence to the court due to fear.

She presented the judge with a statement made by Ms Minors on January 13, 2013 saying she had become sick as a result of the pending court case and experienced fear.

According to the judge’s summary of the statement as she made her ruling yesterday, Ms Minors “doesn’t believe justice will be done in this case” and that “key evidence is missing”.

The judge said the complainant also “made it very clear she never wants to see another police officer again, or hear from one”.

Mrs Justice Simmons said she had to consider factors including the contents of the police interview, and whether it would be possible for the defence to controvert the contents if Ms Minors did not give oral evidence in court.

She also had to consider whether allowing the statement to be read in would be fair to the defendant.

Mrs Justice Simmons said she had “some reservations as to the reliability of her [Ms Minors’] statement and whether it proves that she’s staying away from court due to fear”.

She added: “No doubt she’s experienced some fear, but it also seems to indicate that she’s lost faith in some aspects of the criminal justice system.”

She went on to note that the defence would not be able to challenge Ms Minors’ evidence if she did not take the stand.

Ms Smith also applied to have the statements of police officers Steve Darrell, Wayne Gaskin and Christopher Sabean read into evidence.

She explained that Mr Darrell — the first officer on the scene of the incident, and the first to interview Ms Minors — no longer resides in Bermuda.

Mr Darrell also interviewed two of the three suspects in the case, and was the officer in charge of running it.

“The prosecution says it’s impractical to bring him back from England for the trial,” noted the judge.

Mr Sabean, who took notes during a search, is on sick leave. Meanwhile Mr Gaskin was said by Ms Smith to be on extended leave, and unable to attend court.

Noting this would deprive the defence of the opportunity to cross-examine him, the judge said there was “there’s really no excuse for Mr Gaskin being unavailable other than inadvertence or disregard for the court calendar”.

She added: “The defence say it would be unfair for the case to be run on statements without any opportunity for effective cross-examination.”

She concluded her ruling by saying: “The court is of the view that it would be wholly unjust in all the circumstances to accede to the applications being made in respect of all four witnesses.”

She told Ms Smith: “The court was very patient and gave you the widest margin possible to try to get this case on track. The court is always careful to balance the interests of justice.”

She then called the jury in and invited the foreman to find Mr Smith not guilty.

Following that, the defendant was taken back into prison custody since he is already serving a sentence on another matter — the details of which were unavailable yesterday.

Mr Smith was previously in court in April 2008 accused of firearms charges.

This newspaper reported at the time that while he admitted possessing an air pistol, charges of illegal gun possession were dropped after a firearms expert deemed the pistol was not illegal.

Mr Smith was, however, sentenced to 21 months in prison for importing cannabis resin, having been caught at the airport with 411 grams of the drug, worth $41,000, hidden in the soles of his sneakers on September 19, 2007.

He received an additional 30 days for possession of 16 grams of cannabis found at his home on December 30, 2007 when Police officers raided it under the suspicion that he had a firearm.

Invited to comment on the outcome of the latest case, a police spokesman said yesterday: “The Bermuda Police Service works in partnership with the Department of Public Prosecutions to ensure all relevant witnesses are available for court trials.

“However, due to varying circumstances, the officers scheduled to testify in the Supreme Court regarding this matter were not available to appear.

“All of the officers’ evidence was documented and made available to the courts but was not required, as the trial did not proceed due to the complainant failing to appear.”

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Published Jan 16, 2013 at 1:45 pm (Updated Jan 16, 2013 at 1:44 pm)

Alleged crime victim baulks at testifying

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