Trial judge believed Marlon Dillon’s evidence that Brian Borden confessed to shooting
The Court of Appeal on Friday rejected arguments on behalf of Brian Emmanuel Borden, who was convicted last year of murdering Robert Mackford Bush on the night of Sept. 13, 2011 in West Bay.
After upholding the conviction, court president Sir John Chadwick affirmed the sentence of life imprisonment, noting it was the only sentence the judge hearing the matter could pass.
Lead counsel Trevor Burke had argued the appeal last Wednesday. His first argument concerned the Crown’s failure to disclose documents concerning Marlon Dillon, the man who said Borden had confessed shooting Mr. Bush.
By the time Dillon gave evidence against Borden, he had already confessed to his roles in the 2012 robberies at Cayman National Bank and WestStar Television Centre, but he had not yet been sentenced. Mr. Burke said Dillon lied about Borden in order to get a reduced sentence: the documents the Crown had not disclosed showed that Dillon was seeking help from authorities so that he could serve his sentence in another country and be provided with a new identity.
In reading the appeal court’s decision, Justice Alan Moses pointed out that the Crown is required to disclose relevant evidence that might help a defendant throughout proceedings. The test for the appeal court to consider was whether, as a result of documents not being disclosed, there was a real possibility of a different outcome of Borden’s trial.
The court found that, while specific documents had not been disclosed, the information in them had been available to the defense from police notes of interviews with Dillon in 2012. There was ample evidence of Dillon’s wish for himself and his family to be relocated; he had told an officer how frightened he was that his wife and baby would be killed.
By the time Borden’s trial started in July 2014, the Crown did disclose the offer to Dillon’s family of financial assistance for airfare and three months rent.
Dillon apparently believed that authorities had broken promises to get him relocated. But whether that was true or only a belief, it would not have helped Borden at his trial, Justice Moses pointed out – any belief that authorities were going back on their word would have reduced Dillon’s inducement to help them.
Borden had chosen to be tried by judge alone. Justice Alexander Henderson had said he could not convict Borden unless he was sure that Dillon was telling the truth. He indicated it would be dangerous to accept the Dillon’s evidence of Borden’s confession unless there was supporting evidence.
The trial judge could have accepted all or part or none of Dillon’s evidence, the appeal court noted.
Justice Henderson accepted Dillon’s evidence that Borden said he had approached Mr. Bush’s car along with another man and both of them had guns. Borden had named the other man. The judge referred to cellphone records showing Borden’s phone to be in the area of the shooting. Phone records also showed communications between Borden’s and the other man’s phones. These were facts Dillon could not have been aware of when he told police about Borden’s confession to him, Justice Henderson noted.
Borden did not give evidence, and the judge said he was entitled to draw an adverse inference from this silence. Borden was well represented and well advised, Justice Henderson pointed out; he was satisfied that Borden’s silence was because he had no answer to the charge, or none that could stand up to cross-examination. That adverse inference plus the evidence he accepted as factual made him sure that Dillon was telling the truth about the confession he attributed to Borden.
Justice Moses referred to the Privy Council judgment earlier this month that reversed a decision of Cayman’s Court of Appeal and reinstated the conviction of Robert Aaron Crawford, who was found guilty by Justice Charles Quin after a judge-alone trial. The judgment pointed out that the trial judge assesses the credibility and reliability of a witness he sees and hears, while an appeal court sees only findings on paper.
In order to reverse a decision, the appeal court had to be convinced it was wrong, and not merely entertain doubts whether it was right.
Mr. Burke had also argued that there was considerable evidence to implicate two other members of the “Birch Tree Hill gang” for Mr. Bush’s murder, saying it was at least as credible as the evidence against Borden, but the trial judge did not give it serious consideration. The appeal court rejected this argument also as well as a complaint that Justice Henderson had been inconsistent in the way he treated Dillon and the way he treated a defense witness.
Mr. Burke’s submissions were replied to by prosecutor Andrew Radcliffe, assisted by senior Crown counsel Tricia Hutchinson. Commenting in Justice Henderson’s consideration of Marlon Dillon’s evidence, Mr. Radcliffe said, “We submit this is a textbook example of how a judge sitting alone should direct himself.”