Murder defendant discharged

A judge on Monday discharged one of the two men accused of murdering Robert Mackford Bush.

David Joseph Tamasa, 34, was discharged on an indictment for the murder of Mr. Bush in West Bay on the night of Sept. 13, 2011. The case against the second defendant, Brian Borden, continues.

Justice Alexander Henderson agreed with defense team John Ryder and Lucy Organ that there was no case for Tamasa to answer. The Crown had alleged that Tamasa was an accessory before the fact of the murder because there was evidence he had supplied ammunition to Borden.

Borden is accused of being one of two men who fatally shot Mr. Bush. Lead prosecutor Andrew Radcliffe, assisted by Senior Crown Counsel Tricia Hutchinson, has not yet completed his presentation of evidence against Borden.

After the judge’s ruling, Ms. Hutchinson confirmed that a discharge is the same as an acquittal; if there had been a jury, the judge would have directed them to return a formal verdict of not guilty, she explained.

The ruling does not mean Tamasa is freed from custody. He was one of five people convicted by a jury last year for the robbery of Cayman National Bank. He was sentenced to 14 years, so when he was returned to custody after the judge’s ruling on Monday, there was no great show of emotion from him or from the gallery.

The evidence against him in this trial came from Marlon Dillon, who was also involved in the CNB robbery. He told the court that he was driving Borden home on Jan. 4, 2012, and Tamasa was also in the car. When they reached the junction of Birch Tree Hill Road and Captains Joe and Osbert Road, Borden said that was where he and Keith Montaque had “mashed up” Mr. Bush.

After Borden left the vehicle, Dillon said, Tamasa told him he had supplied ammunition Borden in September 2011.

In his ruling, Justice Henderson pointed out that there was no evidence to support what Dillon said. If Dillon were believed, his evidence would show that Tamasa did give Borden ammunition and it would be reasonable to say that the ammunition was used in the shooting of Mr. Bush.

It appeared from the circumstances that, by the time of the conversation in the car, Tamasa did know the ammunition had been used in the murder.

But the essential ingredient was what Tamasa knew at the time he handed the ammunition over.

“I am satisfied that no trier of fact, properly directed and acting reasonably, could infer from Marlon Dillon’s evidence that David Tamasa possessed the requisite state of mind at the critical time,” Justice Henderson said.

There was no evidence that Tamasa knew of any intention to kill anyone when he handed over the ammunition, the judge said. A person who provides ammunition for a murder is an accessory only if he has the necessary knowledge that the principal intended to commit murder, he pointed out.

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