Judge asks for comment on adverse inference
Justice Alexander Henderson listened to addresses on Tuesday by counsel in Chakane Jameile Scott’s trial for murder and said he would deliver his decision at 2pm on Friday, 8 June.
The defendant, referred to as CJ throughout the trial that started on 28 May, elected to be tried by judge alone. He is charged with murdering Asher McGaw in East End on 22 September, 2011. He is further charged with possession of an unlicensed firearm and ammunition.
No gun was found, but three .38-calibre bullets were recovered during the postmortem examination of Asher’s body. There was no forensic evidence, such as gunshot residue or fingerprints, to link CJ to the shooting.
Deputy Director of Public Prosecutions Trevor Ward and defence attorney Sasha Wass agreed that the case depended on the credibility of Antascio Rankine, who told the court he saw CJ shoot Asher. The three were friends: Antascio was 17 at the time, CJ was 18 and Asher was 21.
Mr. Ward cited evidence that he said supported Antascio’s account, including two witnesses who saw three people together in circumstances consistent with where Antascio said he, Asher and CJ went.
Ms Wass pointed to statements from two people who said they were at Pirates Cove Bar and saw Asher until the time he left. One estimate was 2.10am, the other 2.45am. Police on patrol found Asher’s body in the vicinity of John McLean’s Drive around 3am.
Justice Henderson asked both counsel to comment on whether an adverse inference could be drawn from the fact that CJ gave a “no comment” interview to police and then chose to remain silent during his trial.
Mr. Ward pointed to directions given to jurors in such situations. The judge would tell them they could draw such inferences as are proper to do so. If there is a case for the defendant to answer, they might think he would give an explanation. If the only sensible answer is that he had no explanation – or none that would stand up to cross-examination – it would be open to jurors to hold against him his failure to give evidence.
Ms Wass pointed out that changes in the law regarding adverse influence had not changed the fact that the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. She said there were seven areas of doubt about Antascio’s evidence and one of them was lack of motive.
The defence attorney agreed that the prosecution does not need to prove motive, but suggested there was a likelihood that other people had a motive. Antascio had said Asher wanted a flare gun for protection because the two of them had recently been rushed by six people.