Defendant had no knowledge bullets he supplied would be used to kill someone, attorney says
Justice Alexander Henderson is expected to rule Monday morning as to whether there is a case for David Joseph Tamasa to answer on a charge of murder.
He is accused of supplying shotgun and handgun ammunition to Brian Emmanuel Borden, who is accused of killing Robert Mackford Bush on Sept. 13, 2011, in West Bay.
After lead prosecutor Andrew Radcliffe opened the case on July 17, he agreed with the judge that the case against Tamasa was based on the evidence of crown witness Marlon Dillon.
On Friday, senior crown counsel Tricia Hutchinson read into evidence statements from police officers involved in the investigation and interviews with the defendants. Both defendants denied having had the conversation with Dillon that he described.
Dillon previously had told the court he was driving Borden home on Jan. 4, 2012, at the request of Tamasa, who was with them. He said when they turned into Captains Joe and Osbert Road, Borden said that was where he and a friend “mashed up” Robert Bush. Dillon said after he dropped off Borden, Tamasa told him that Borden had visited him at his home in September and asked him for shotgun bullets and 9mm bullets. Dillon said Tamasa told him that he gave the bullets to Borden in a brown paper bag, but was worried that he hadn’t cleaned them off.
Crown counsel on Friday also said that Tamasa told officers his only relationship with Borden was having done some sheetrock work for him in August/September 2011.
Tamasa’s defense counsel, John Ryder, said, “It is our respectful submission there is no case to answer.”
He cited the Dillon’s evidence as being insufficiently reliable, and that, even if it were accepted that Tamasa admitted supplying bullets to Borden, there was no evidence that he did so in the knowledge or expectation that they would be used to kill anyone.
Mr. Ryder agreed that someone who aids or abets need not know the precise identity of the person to be killed, only that there is a person to be killed. What was missing in this case was any knowledge, he said.
Justice Henderson went through his notes of what Dillon had said Tamasa told him: He said nothing about what the bullets were used for; he did not say why he provided the bullets; he did not say why he brought up the subject; he did not say when he supplied the bullets.
Mr. Ryder said, “These facts are not consistent with use exclusively in a homicidal attack.”
The judge pointed out that it was open to him to believe Dillon even in the absence of corroboration.
Mr. Radcliffe said the Crown had to prove that Tamasa supplied the ammunition and that he knew it would be used in a homicidal attack even if he didn’t know the target. He agreed that Dillon did not say that Tamasa said the bullets were used to “mash up” Robert Bush. He agreed that was the gap.
Justice Henderson replied, “It’s not only a gap – it’s a yawning chasm.”
But Mr. Radcliffe argued it would be artificial to divide what Tamasa said from what Borden had just finished relating. The conversation had continued almost seamlessly, with Tamasa taking it up after Borden was dropped off, so it could only have related to what Borden had said.
Justice Henderson said the “mens rea” [guilty knowledge] had to have been present when Tamasa handed over the ammunition. By the time of the conversation four months later, Tamasa may well have known what the ammunition was used for, the judge indicated.