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‘No case’ against Tomasa
(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.
Key witness recalls confession
(CNS): Marlon Dillon, the crown’s key witness in the Robert Macford Bush murder trial, surprised the court by introducing details that he had not previously given in any statement to the police or at the pre-trial preparation with the prosecution a week ago, adding information (or, as the defence maintained, embellishing the lie) to his claims that Brian Borden told him that he had murdered Bush, and David Tomasa had confessed to him that he had supplied the ammunition for the murder. On Wednesday he added to his expected testimony, as laid out by prosecutor Andrew Radcliffe, QC, in his opening statement, and said that Borden had also told him that after the murder he had run home, hidden both the shotgun and the handgun used to shoot Bush and then had taken a shower with bleach to wash off the gunshot residue in case he was picked up by the police.
When he took the stand on Wednesday, Dillon also said, as he recounted Borden’s alleged confession, that Borden had told him that the funeral home which dealt with the body of Robert Bush had stuffed his face with cotton wool because part of it had been blown off by the shotgun.
Challenging him on this new information, Trevor Burke, QC, heading the defence for Brian Borden, asked him, if this was true, how could he possibly have forgotten it? When pressed, Dillon said he had remembered these new details on the 18 or 19 July 2014, a few days before the trial started, but could not explain why he had not remembered it before or why, having suddenly remembered he did not make an effort to make a new official statement.
Dillon was arrested for the CNB robbery on 28 June 2012, the same day the robbery took place, and is currently awaiting sentencing for his part in that crime and for the WestStar robbery, which took place on 24 May 2012. He gave evidence in court against his co-conspirators in both trials, and Burke suggested that his motive in giving evidence in this trial was to have his sentence further reduced.
In his witness testimony, Dillon said that as they entered the junction of Birch Tree Hill Road and Capts Joe and Osbert Road while he and Tomasa were driving Borden home, Borden had said, “You know where this is? This is the Birch Tree Hill Cemetary,” and pointed to the wall. “This is where we mash up that M**** F**** boy, Robby,” he recalled him saying.
Dillon gave a number of statements to the police following his arrest, but the first time he said that Brian Borden had confessed to him about killing Bush was on 10 July 2012. At this time, he said that the confession had happened about February or March 2012, though this recollection was changed last week during the pre-trial preparations to a precise date of 4 January 2012, as Dillon said he had been “sitting in his cell, gathering his thoughts”.
Two days after this statement, on 12 July 2012, he added the detail that just before the murder a cousin of Borden in Daisy Lane had communicated to him in some way that Robert Bush was on his way. Under cross-examination by John Ryder, QC, leading the defence for David Tomasa, Dillon explained that the purpose of the second statement was to clarify the first statement as he had had two days to think about it.
In that statement, Dillon said that as he drove, he and Tomasa listened to Brian Borden talk about shooting Bush as they were driving past the crime scene. But it was not until a further statement six weeks later, on 24 August, that Dillon said that Tomasa had also confessed to him his part in the murder after they had dropped Borden home and the two of them were driving back to Tomasa’s home.
Ryder questioned Dillon about telling police in the second statement that he and Tomasa had sat in silence and did not ask Borden any questions while he described his crime. “Did that not remind you that David had said something about the bullets?” he asked, but Dillon’s response was evasive.
Tomasa’s defence lawyer also reminded Dillon that the whole purpose of the 12 July statement was to clarify the one made two days earlier, and the reason he had given the police for not mentioning Tomasa’s confession was that he had been focused on Brian Borden.
In that statement he had said that hehad heard that Mayra Ebanks was in the car at the time of the murder from other people on the street, but he couldn’t remember who told him. However, in the August statement he said that Borden told him this fact.
“It is plainly not the case that you were simply concentrating on what Brian Borden said to you,” Ryder said.
Justice Alex Henderson is hearing the case in a judge-alone trial.
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Witness saw gunmen coming
(CNS): Testifying via video link from another jurisdiction in the trial of Brian Borden and David Tomasa for the murder of Robert Macford Bush, Mayra Ebanks, who was in the car when her boyfriend was shot dead, said she knew Borden well. The crown's witness said she had met him at high school in 2004 or 2005 and they had had an “occasional relationship’ but it did not last long and had ended amicably. She told the court how on the night of the killing she had seen the two masked gunmen before they shot her boyfriend and had urged her lover to drive away, yelling, "Drive! Drive! Drive!" but in his confusion he lost control of the car and drove into the wall, leaving him a sitting target for his assailants, who fired into the car before running away.
Taking the witness stand on Monday and Wednesday this week, Ebanks told the court that she heard Bush coming to pick her up before she saw him arrive at the junction of Capts Joe and Osbert Road and Birch Tree Hill Road in West Bay a few minutes before his murder, as he was in the habit of playing music very loudly in his car.
He “barely turned into” Capts Joe and Osbert Rd, she said, and she walked around the back of his blue Honda Civic to get in. As she passed the back door she saw two people across the street, almost in front of her friend Tishara Webster’s driveway, walking towards them. It looked as if one of them had a machete in his hand, Ebanks recalled.
When Ebanks got to her door, she told the court, she looked over the roof of the car and saw that the two men were crossing the entrance of the church yard and at that point they started running. Now, she said, she could see that it was not a machete but a shotgun. The two men had shirts tied around their faces, and she said she could not see who they were but one was wearing red, long sleeved shirt and camouflage pants and the other was wearing a camouflage jacket.
Ebanks said she got into the car as fast as she could and started yelling to Bush that he should “Drive! Drive! Drive!” But Bush’s reaction was slow because he was cleaning a CD while he changed the music. “He looked at me like, what’s happening?” she said, and turned around to look for himself. Then he started to drive away but lost control of the car and drove into a wall. He tried to drive offbut could not move, Ebanks said. “That’s when I heard the shot.”
The shooters stood by the driver’s side of the car and from where she was she could not see their heads. After shooting Bush, they ran off across the road.
Under cross-examination by Borden’s defence lawyer, Trevor Burke, QC, Ebanks refuted the suggestion that Jordan Manderson and David Ebanks, who were in the area of the murder, had been wearing clothes very similar to what she had described the killers as wearing (which would suggest that they could in fact be the shooters) as she said there were significant differences in their apparel.
A few minutes before the murder Mayra Ebanks had had a BBM exchange with the two of them on David Ebanks’ Blackberry, telling them that she was on her way to meet Robert Bush (a key part of the crown’s case against Borden). The two of them had passed her while she was on the phone to Bush, waiting for him, and had gone into Watler’s yard, and the defence noted that after the murder, when people had come to see what had happened, they were not there.
Burke asked Mayra Ebanks about the day before the murder, when Bush had picked her up from the same spot but had then driven into Watler’s yard to pick up some Rizlas, and had returned to get some Bacardi.
While there he had spoken to Manderson, the man who had previously told Ebanks that although some of the Birch Tree Hill gang wanted to hurt him, he told her that “as long as he was around that wouldn’t happen because they have to come to me for their things.” Ebanks said she had tried to record this conversation to let Robert hear, because she was worried, but said the conversation between the two men had seemed freindly.
Burke suggested that it might have appeared disrespectful for Bush, a member of the Logwood group, to come to a gathering in Birch Tree Hill. The defence also suggested that Manderson wanted to have a relationship with Ebanks, but she said that although he had come onto her a few times, she had told him that he was too young for her.
Ebanks was also asked about three photos that had been taken in late 2010 with her camera in which Brian Borden inspects a handgun and in one photo points it at the camera. She was adamant that they had been taken at her cousin’s house, even when the defence suggested that they had been taken at her home in Cinder Lane and that she had, in fact, given the gun to Borden to look at.
In the days following the murder, Mayra Ebanks admitted that she had told various people that she thought one of the killers was Andrew Baptise, who was himself shot to death shortly afterwards.
Burke noted that an earlier boyfriend of Ebanks, Mark Jefferson, had been shot to death while she was seeing him. Carlos Webster had been shot to death while she was living with him. And now Robert Bush had been shot and killed while he was seeing her.
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WB shooting trial begins
(CNS): The trial of Brian Emmanuel Borden (29) and David Joseph Tamasa, who have both pleaded not guilty to the murder of Robert Macford Bush in West Bay on Tuesday 13 September 2011, began Thursday in a judge-alone trial before Justice Alex Henderson. The crown contends that one of the two shooters was Borden and the men were firing ammunition supplied by Tamasa. The prosecution says that both the defendants later boasted of their part in the killing of Bush to a friend, who will be a key witness in the trial.
On the night of his death, 28-year-old Robert Macford Bush was picking up his girlfriend, Mayra Ebanks, at the junction of Capts Joe and Osbert Rd and Birch Tree Hill Rd in West Bay, as he was in the habit of doing, when two gunmen approached the car from behind and began shooting. Bush started to drive away but lost control of the car, which crashed into a wall, trapping him inside as the gunmen, one armed with a shotgun and the other a 9mm handgun, approached the driver’s side of the car and shot him twice in the head at close range, injuring Mayra Ebanks with shotgun spray as she sat in the passenger seat. The pathologist concluded that both shots would have been fatal.
In his opening statement, Andrew Radcliffe, QC, the lead prosecutor, said that Borden was one of the shooters and the other was Keith Montaque and they had been given a heads-up that Bush was on his way.
A series of messages between Mayra and a phone belonging to David Ebanks, which the crown believes was being used by Jordan Manderson and was telling him that Bush was coming, ended at 11:08pm that night. At 11:14pm the David Ebanks phone sent a Blackberry messages to Brian Borden, who was in the vicinity of the murder according to cell site evidence, and not, as he had claimed to police in a statement before he was a murder suspect, at home at the time. The 911 call after the shooting made on Mayra’s phone by Tishara Webster, who had arrived on the scene and taken the phone from Myra, who was screaming and hysterical, was made at 11:20pm.
Radcliffe explained to the court that the content of Blackberry messages is stored on the devise itself and nowhere else. He said that at 11:25pm, just a few minutes after the killing of Bush, the David Ebanks phone removed Borden as a contact, thus deleting forever the content of all messages between those phones – though not the fact that they were made. However, while the Ebanks phone initiated the removal of the contact between them, it took until 11:52pm (27 minutes) to achieve this.
The prosecutor said the only possible explanation for this was that Borden’s phone was switched off between those times and suggested that Borden knew enough to understand that this action would delete all the messages – perhaps by watching television – but did not understand that both phones had to be turned on to complete this action. Radcliffe invited the conclusion that the timing of this indicates that it was done in order to hide their criminal involvement.
The prosecutor said that an off duty police officer who was on the scene very quickly recognised Bush and saw that at that time he was still alive. USG officers arrived within five minutes of the 911 call and cordoned off the scene. When the paramedics arrived within 15 minutes of the 911 call, they tried to save Bush but could not find a pulse.
Radcliffe said that later, in mid-2012, while Borden and Tamasa were being given a ride by their friend, Marlon Dillon, Borden bragged about killing Bush as they passed the murder spot. After they dropped Borden off, the conversation continued and Tamasa boasted to Dillon about his role, which was supplying the ammunition. The prosecutor said that when Dillon told police about this he could not possibly have known that the cell site evidence would support it.
Tomasa has denied to police that he was friends with Dillon and claimed he only knew Borden slightly. Both the defendants, Radcliffe said, have also denied that this car trip ever took place.
Bush had been warned by Tracy Watler that Borden wanted to kill him, Radcliffe told the court. After he was released from Northward prison in October 2010 and repeatedly up to August 2011, he had asked Watler to set up circumstances so that he could do this but she had refused. Radcliffe suggested that this hatred stemmed from the fact that they were from rival gangs but jealousy may also have been a motive, since Borden had previously had a sexual relationship with Mayra Ebanks, something he had denied in a police statement in September 2011.
The crown believes that Jordan Manderson not only tipped off the shooters, Borden and Montaque, but may have also supplied the weapons. Manderson, the crown said, had previously told Mayra Ebanks that anyone wanting to kill Bush would have to contact him to “get the things”, which she took to mean guns. On the day Bush died, the crown said, Manderson had been at her home and had received a cell phone call and she was close enough to him to recognise the voice as being Borden’s. She could hear that he was telling Manderson that he was coming “for the things”, Radcliffe said.
The trial continues in Grand Court this morning.
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Murder defendant to wait 2 years for day in court
Murder defendant to wait 2 years for day in court
(CNS): The crown has successfully argued that a second man charged with the murder of Robert Bush in West Bay in September 2011 should stand trial with the first man charged with the crime. As a result, David Tomassa will now stand in the dock in July alongside Brian Borden, who was originally charged in relation to the gang-related killing in August 2012 and has been in custody ever since. Bush was shot by two armed gunmen who opened fire on him as he sat in a car in the Birch Tree Hill area of the district, which triggered a tit-for-tat spate of murders across a nine day period, when four other young men were shot and killed and a fifth man received multiple gunshot wounds but survived.
Borden was charged and remanded in custody almost a year after the killings but it was more than two years after the killing that police charged Tomassa, in December last year.
A catalogue of legal issues with this case have led to numerous adjournments, leaving Borden on remand for an excessive amount of time without trial.
Following the last minute adjournment of Borden’s trial, which was due to start in January, as a result of the charges against Tomassa which resulted in a surge of eleventh hour disclosure relating to that case, prosecutors took the opportunity to apply for both men to face trial together. Meanwhile, defense attorneys for both Borden and Tomassa applied for the men to be tried separately.
Following legal arguments on Friday, the chief justice ruled Monday morning that the men would be tried together and date was fixed for July 2014, almost two years since Borden was taken into custody.
Although defence attorney Nick Hoffman, who is representing Borden, has applied for bail on numerous occasions for his client, he remains on remand at HMP Northward. Hoffman has also fought and lost a human rights case regarding what he argued was a breach of Borden’s presumptive right to bail on the basis of the crime he is charged with and not on the circumstances of the case.
Although it is not mandatory for murder suspects to be jailed while awaiting trial, it is exceptionally rare that a person charged with murder would be granted bail. This is based on the penalty of a mandatory whole life sentence, which the crown has always successfully argued makes any defendant in such cases an elevated flight risk, and as a result the suspects, regardless of the level of evidence, are almost never bailed.
Murder suspect faces two year wait for trial
(CNS): A West Bay man who has been on remand for 18 months in connection with an alleged gang -related murder in the district might not face trial until more than two years after he was charged, the court heard Friday. Brian Borden is accused of being one of two masked gun men who opened fire on and killed Robert Mackford Bush as he sat in a car in the Birch Tree hill area of West Bay in September 2011. He was chargedwith the fatal shooting in August 2012 but a catalogue of issues with the case and with the main witness have caused numerous adjournments, leaving Borden on remand for an excessive amount of time without trial.
The latest adjournment of the trial, which was due to start last month, was caused by the charge against a second suspect, David Tomassa, for being an accessory to the killing and the impact that then had on Borden’s case. In addition, the crown now wants to try Tomassa and Borden together and have made an application to the court to join the cases. The two attorneys representing Borden and Tomassa, however, will be seeking to sever the cases and have two separate trials.
The lawyers will argue that court room battle next month, and although a trial date has been fixed for September, Nick Hoffman, who is representing Borden, told the court that he was hoping to find an earlier date as a result of the circumstances his client now faces.
Although Hoffman has applied for bail on numerous occasions for his client, Borden remains on remand. Hoffman has also fought and lost a human rights case regarding what he argued was a breach of Borden’s presumptive right to bail on the basis of the crime he is charged with and not on the circumstances of the case.
Although it is not mandatory for a murder suspect to be jailed while awaiting trial, it is exceptionally rare that a person charged with murder would be granted bail. This is based on the penalty of a mandatory whole lifesentence, which the crown has always successfully argued makes any defendant in such cases an elevated flight risk, and as a result the suspects, regardless of the level of evidence, are almost never bailed.
Given the possibility, however, that Borden may now have to wait until more than two years after he was charged for his day in court, the question of the right to timely justice is now also a potential problem in this case.
Murder trial adjourned over legal complications
(CNS): The case against a West Bay man accused of killing Robert Bush has been adjourned once again as a result of ongoing legal complications. Brian Borden, who was due to face trial on Wednesday for the murder, has denied being involved in the fatal shooting but has now been incarcerated for some 18 months on remand. Borden was arrested in August 2012 and then charged with murder almost one year after Bush was gunned down in West Bay in September 2011 in what is believed to be a gang related killing. However, a catalogue of issues, which continued this week, have served to delay his trial. Borden has been remanded in custody and is due to return to court Friday. Police have also recently charged David Tomassa with the same crime.
Murder trial adjourned in face of legal issues
(CNS): The chief justice dismissed the latest jury panel Monday with orders to return to the Grand Court on Wednesday for selection in the anticipated trial of Brian Borden for the murder of Robert Mackford Bush in September 2011, but not before fining several jurors from the pool who failed to show up $500. Borden, who has been remanded in custody since his arrest almost 18 months ago, has had two trial dates adjourned as a result of legal issues surrounding his case and further legal issues were heard by Chief Justice Anthony Smellie in the absence of the jury Monday. Although the start of the case was pushed back again, at this point the anticipated four-week trial is currently set down to open on Wednesday.
Borden is alleged by the crown to have been one of two men that opened fire on Bush as he sat in a car at the junction of Capt Joe and Osbert Road and Birch Tree Hill in West Bay in a gang-related killing.
The crown recently also charged a second man with the murder. David Tomassa, who the crown says aided and abetted the killing, will not stand trial with his alleged co-conspirator and is currently expected to have his case heard in the summer.
Tomassa, who has denied any part in the shooting, appeared in court Friday but did not submit a plea in the case at his attorney’s request as a result of discussion the defence team is now having with the crown.
CJ finds bail law lines up with human rights
(CNS): A murder suspect who has been in jail on remand for almost 18 months has failed in his bid to have the bail law declared incompatible with the Bill of Rights and the Constitution. In a ruling delivered on Christmas Eve following a judicial review that was heard in September, Chief Justice Anthony Smellie found that the law did not clash with a person’s rights to liberty enshrined in the constitution. Brian Borden, who is due to stand trial on Monday for the murder of Robert Mackford Bush, had argued via his attorney, Nick Hoffman, that the bail law was disproportionate because of the presumptive denial of bail for murder suspects, and many others under Cayman Islands Law, claiming it breached human rights.
While the law does remove the entitlement to bail of people charged with a long list of offences it does not prevent them from applying and demonstrating why they should not be held on remand.
The Chief Justice Anthony Smellie, dismissed the application and said that, “notwithstanding the purported disentitlement to bail expressed in section 17(2),” it should “appropriately be read down to make it compliant with the Bill of Rights requirement of prompt and continuing judicial oversight, when the court will be entitled to account of all relevant considerations pointing for and against the grant of bail for any of the listed offenses.”
He added that any lack of clarity or ambiguity was neither disproportionate nor arbitrary and
“not incompatible with the Bill of Rights.”
Given that the hearing and subsequent ruling came relatively late in the day for Borden who will begin his trial on 20 January the case has implications for other inmates held on remand for murder or various other serious offences.
Although the law does not mandate that murder suspects must be on remand it is almost unheard of for the courts to release anyone on bail who is charged with killing another individual. Regardless of the standard of evidence or circumstances surrounding the case or the allegation, in each and every bail application the crown simply argues that the mandatory penalty of a whole life sentence for any person convicted of murder here makes them a significant flight risk and the courts rarely if ever disagree.
Hoffman had argued that the bail law denied certain defendants the right to be considered innocent until proven guilty. By listing offences where bail should be denied until the defendant could prove why they should be let out, the law was disproportionate because it already sets out the reasons why people should be denied bail in the interests of justice regardless of the crime.
When people apply for bail the crown can argue legitimately that someone should not be bailed for various reasons whatever offence they have been accused of they can point to overwhelming evidence, a genuine flight risk of a foreign national, the danger they will commit another crime or interfere with witnesses among other statutory reasons. Hoffman submitted that there was no need for the law to add to that list with specific offences which was essentially overkill.
Murder trial in question at 11th hour
(CNS): Charges against a second man for the murder of Robert Mackford Bush have placed the trial of Brian Borden who was first charged with the alleged West Bay gang related killing in 2012 in jeopardy yet again. Borden is due to stand trial next Monday but charges laid against David Tomasa last month by the police have triggered mountains of last minute disclosure and raised numerous questions about the case. Nick Hoffman, Borden’s defence attorney told the court Friday that he had grave concerns about the trial given the release of so much material so close to the opening of his clients’ trial and the change in the crown’s case against him. However, having already faced two adjournments because of police enquiries the attorney said his client was still keen to press ahead as he has been on remand without trial for almost 18 months.
Police have charged Tamasa with murder though it is understood their claim is that Tomasa aided and abetted in the fatal shooting of Bush but under the law he can still be charged with the killing which carries a mandatory life sentence.
Bush (28 ) was gunned down while he sat in his car at the junction of Birch Tree Hill Road and Capts Joe and Osbert Road in West Bay on 13 September 2011. This triggered a series of gang related killings over a nine period in which five young men were shot and killed and a sixth seriously wounded. Borden was charged almost a year later with the murder and remained until last month the only person charged with the killing until last month when Tamasa was also charged.
Far too late for the crown to join Tomasa to the same indictment Borden will be tried alone but his attorney noted that the change could have a very significant impact on the case against his client as he raised concerns about the quantity of material which now exists that he will need to examine before the case against his client begins next week. Asking the court for an order to ensure he has all of the information generated by this investigation, Hoffman criticised the crown for the way in which they had handled the release of the documents and the 11th hour charge.