The Tribune

By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

A SUPREME Court judge has ruled that five viral voice recordings at the heart of the $1.4m Odyssey Aviation robbery case can be played at trial, rejecting lawyer Bjorn Ferguson’s bid to have the prosecution against him stopped.

Justice Dale Fitzpatrick described the recordings as “probative, seminal evidence” on the central questions of who participated in the recorded conversations and what was discussed, finding that their value outweighed any potential prejudice to Ferguson.

The recordings allegedly capture Ferguson, former Criminal Investigations Department chief Michael Johnson and the late gang leader Michael Fox Jr discussing an agreement to undermine the investigation into the theft in exchange for money believed to have come from the stolen funds.

Ferguson had argued that the recordings were not properly authenticated, could have been altered or fabricated and were inadmissible copies whose original source had not been established. He contended that without the recordings there was no admissible evidence connecting him to the allegations and that continuing the prosecution would be an abuse of the court’s process.

However, Justice Fitzpatrick ruled that the recordings and supporting evidence raised issues that a jury should decide at trial.

“The Voice Recordings are admissible given their significant probative value and the lack of demonstrated prejudice to the Applicant,” he wrote.

The ruling clears a major pre-trial challenge in a case expected to begin in November 2026.

Ferguson, a former police officer who was practising as a defence lawyer at the time of the alleged offences, is charged with conspiracy to commit bribery. He and Johnson are also charged with being accessories after the fact to conspiracy to commit stealing.

Johnson, who was a chief superintendent and officer in charge of CID, is additionally charged with stealing and receiving.

Deangelo Rolle, then a sergeant assigned to CID, is charged with receiving and abetment to stealing.

The allegations stem from the robbery of approximately $1.4m from an ICS Security transport vehicle parked outside Odyssey Aviation near Lynden Pindling International Airport.

Prosecutors allege Fox orchestrated the robbery and that Ferguson and Johnson later engaged in negotiations aimed at blunting any prosecution of Fox in exchange for payments.

The five recordings were broadcast on Facebook on or around July 3, 2024, by social media personality Sylvens Metayer during a live video and were subsequently circulated on Facebook and WhatsApp.

Their release triggered a police investigation.

Ferguson challenged both the way the recordings were obtained and whether the prosecution could prove that the voices and conversations were genuine.

His intended expert, cybersecurity and digital forensics professional Dr Raymond Wells, said neither the prosecution’s expert report nor a police report referred to metadata or hash values associated with the recordings.

Metadata can contain information about a digital file’s origin, time and location, while hash values can help detect whether a file has been altered.

Dr Wells said authentication was not possible without that information and that “alteration, manipulation, contamination and/or digital forgery cannot be excluded”.

The prosecution’s intended expert, forensic speech analyst Dr Christine Kirchhubel, was given the five recordings and known recordings of Ferguson, Johnson and Fox.

She found that the disputed recordings were unsuitable for comparison with the known samples and could not confirm that any of the three men’s voices matched those heard in the recordings.

One recording was also of insufficient quality for her to assess whether it had been generated by artificial intelligence.

However, she found “very strong support for the view” that the remaining four recordings were not AI-generated and “strong support for the view” that the same unidentified man was the primary speaker in all five.

Justice Fitzpatrick said Dr Kirchhubel ultimately concluded that the files were probably authentic recordings of conversations featuring one principal male participant.

He stressed that neither Dr Wells nor Dr Kirchhubel had yet been qualified as an expert at trial, testified or been cross-examined.

Their competing conclusions, he said, would form part of the evidence the jury could accept or reject when deciding whether the recordings captured genuine people and conversations.

The prosecution also relied on Johnson’s police interview.

After officers played the recordings for him, Johnson admitted he participated in one of them and identified Fox as the other person in the conversation.

Johnson recalled “having a conversation in relation to him turning himself in”.

The judge said that admission confirmed that one of the five disputed recordings was an authentic recording of a conversation between Johnson and Fox and appeared to support Dr Kirchhubel’s conclusions that the recordings were not AI-generated and contained one principal male voice.

Johnson denied participating in the other four recordings.

Fox’s mother, Mitzi Jones, also gave a statement saying she recognised the voices of her son, Johnson and Ferguson in the recordings and outlined the history of her relationships with them as the basis for her identification.

Superintendents Antonio Levarity and Terrico Sweeting similarly said they recognised the voices of Ferguson, Johnson and Fox based on their previous dealings with the men.

Ferguson argued that those identifications should not be allowed because the prosecution’s expert was unable to identify the speakers.

Justice Fitzpatrick rejected that position, saying expert voice comparison and identification by people familiar with a speaker’s voice relied on different foundations.

He said expert analysis used recognised forensic techniques, while lay witnesses relied on familiarity developed through previous contact with the person.

“Expert voice analysis and lay voice recognition based on familiarity are not mutually exclusive,” he said. “They can and often do co-exist.”

The judge also rejected Ferguson’s argument that the Evidence Act barred copies of the recordings because police did not obtain the original recordings directly from any alleged participant.

He said the files obtained through the Facebook broadcast and subsequent social media circulation were secondary evidence, but copies could be admitted when originals were not reasonably available. The weight placed on them would then be a matter for the jury.

Justice Fitzpatrick said the growing use of material circulated electronically by unidentified people meant criminal courts regularly encountered documents, photographs, audio and video obtained second-hand through social media.

He found no statutory prohibition preventing the recordings from being admitted.

Justice Fitzpatrick said Ferguson had also failed to demonstrate that allowing the recordings into evidence would cause unfair prejudice.

Ferguson would be able to call Dr Wells and other witnesses, challenge the prosecution’s experts and voice-identification witnesses through cross-examination and present witnesses who dispute the alleged voice recognition.

The judge said the jury would also have to be warned about the risks associated with identification evidence generally and voice identification in particular, including any weaknesses in the evidence.

Ferguson separately challenged evidence obtained through a search warrant executed at Fox’s home in January 2024.

Police seized two iPads, two laptops, nine mobile phones and four drones, which had been sent to the FBI for forensic examination.

The ruling said two reports confirmed that data had recently been extracted from two seized phones, but prosecutors had not filed anything identifying evidence from those extractions that was relevant to the charges against Ferguson, Johnson or Rolle.

Justice Fitzpatrick said the voice recordings were obtained from Facebook or WhatsApp before the men were charged and well before the phone extractions were completed.

He also said the court was “at a loss” to understand Ferguson’s standing to challenge a search of a residence in which he had no legal interest and the seizure of items that did not belong to him.

The judge further rejected Ferguson’s challenge to the Voluntary Bill of Indictment, finding no defect in its wording and saying it clearly identified the charges and basic details of the alleged offences.

He said any argument that the prosecution’s evidence was insufficient would be more appropriately raised in a no-case submission after the prosecution had presented its complete evidence at trial.

Justice Fitzpatrick found that prosecutors had already presented evidence capable of going before a jury on the identification of the speakers and Ferguson’s alleged involvement.

“There is no basis to quash the VBI,” he said.

Ferguson’s application was denied and dismissed.