‘No case’ against Tomasa

| 28/07/2014

(CNS): Justice Alex Henderson dismissed the case against David Tomasa in Grand Court Monday after submission by his lawyers Friday. Tomasa was standing trial with Brian Borden for the murder of Robert Macford Bush in September 2011 and the crown's case against him was that he supplied the ammunition for the shotgun and the handgun used in the murder. The evidence against him relied almost entirely on the testimony of Marlon Dillon and Justice Henderson said that even if Dillon's testimony was to be believed, the crown had not demonstrated that at the time of the transaction Tomasa knew what the ammunition was to be used for or that Borden intended to kill anyone.

The prosecution's case rested on the alleged confession about the murder told to Dillon while he was driving Borden home, while Tomasawas in the car. Dillon had told the court that as they passed the murder scene, Borden had pointed to the wall and said that that was where he and Keith Montague had "mashed up" Bush.

After they had dropped Borden home, according to Dillon's testimony, Tomasa had then told him that he had given the ammunition to Borden in a brown paper bag and was worried that he had not cleaned off the bullets and that the crime would lead back to him.

In his ruling, Justice Henderson noted that it was a reasonable inference that if Tomasa supplied the ammunition that it was used to kill Bush but for a murder conviction it must be proved that in aiding and abetting he was aware that the ammunition would be used to kill someone at that time, although knowledge of the identity of the victim was not required.

In Dillon's evidence, Tomasa did not say why he gave the ammunition to Borden or when this transaction took place.

Justice Henderson said there was no evidence that at the time of the transaction that Tomasa knew that Borden would use the bullets for any offence at all, only that he knew by the time of the conversation in the car that he knew it was used in the murder of Bush.

"There is no inference that David Tomas had the required state of knowledge of the crime," Henderson ruled as he discharged him of the indictment.

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