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Kern tapes will be heard, says judge

Published:Tuesday | March 16, 2010 | 12:00 AM

THE CROWN scored a major victory yesterday in the Kern Spencer trial, as Senior Magistrate Judith Pusey ruled that the cellphone recordings between Spencer and star witness businessman Rodney Chin should be played and become part of the evidence.

She, however, rejected the recordings between Chin and the mother of Spencer's child, Sherene Shakes.

The ruling came after weeks of legal wrestling between the defence and prosecution over whether the recordings, which Chin testified he made to prove to relatives and friends that he was innocent, be made admissible.

Following the ruling, the defence pledged to look into whether it could launch an appeal.

"We are examining whether or not the proceedings allow for a case to be started at this stage if the appellate court makes a determi-nation of the correctness of the ruling," K.D. Knight said.

In a four-page ruling, Pusey said the court had to consider whether the prosecution had established, beyond a reasonable doubt, the authenticity, accuracy and provenance of the recordings.

During his testimony in the trial, Chin said he transferred six recordings after the keypad of one of the Samsung phones stopped working.

The issue of whether the malfunction may have had an impact on the integrity of the recordings was raised repeatedly during this period by the defence.

Data not corrupted

However, Pusey said that despite the malfunction of the dial pad of the phone, when Chin transferred the recording, the material was identical on the phone to which it had been transferred.

"The evidence here, which is uncontroverted, is that when the transfer was made, the material was identical, so the fact that the button did not answer on a first touch when a call came in, did not on the evidence affect, dilute or corrupt the data transferred," her statement read.

In addressing whether Chin was competent to give evidence about the operation of the devices, Pusey said the Evidence Act does not designate who is competent to give evidence, therefore Chin's testi-mony could stand.

In the case of the recording between Chin and Shakes, Pusey ruled that it was hearsay and its relevance was questionable in the determination of the guilt or innocence of the accused before the court. She said for the recordings to be played, some basis had to be laid by the prosecution.

Spencer and his former assistant, Coleen Wright, are alleged to have benefited improperly from the implementation of the Cuban light-bulb programme.

Spencer, a former junior energy minister, is on nine fraud-related charges while Wright has been slapped with six.