Appeal dismissed for gang murder

| 23/11/2015 | 7 Comments
Cayman News Service

Cayman courts, Grand Cayman

(CNS): Brian Borden was returned to jail Friday after learning that his appeal against conviction for the murder of Robert Mackford Bush in 2011 was dismissed. Although heavily critical of the crown for the non-disclosure of evidence to the defence, which was the core of the appeal, the Court of Appeal found that if the evidence had been available to the defence during the trial, it would not have made a difference to the judge’s decision to convict Borden and hand down the mandatory life sentence.

The Office of the Director of Public Prosecutions (ODPP) had been ordered to hand a number of documents to the defence team in this case by the presiding judge in a different case that involved Marlon Dillon, the key witness against Borden, saying that it should have been available to them. However, even after the order, the office had not done so immediately and the documents had been “dripped” to the defence team, which the appeal judges described as “serious and inexcusable”.

Borden’s lead counsel, Trevor Burke QC, had brought the issue of non-disclosure to the court’s attention at the beginning of the hearing as a “housekeeping” matter, but discussions surrounding it took up most of the first day.

The most serious complaint concerned two letters from Dillon’s attorneys. One of these was from Bindmans, a leading law firm in London, to the Cayman Islands governor and the second from local law from Stenning and Associates to the ODPP.

Burke complained that the letter written by James Stenning in November 2013, months before Borden’s trial in June 2014, had not been handed to the defence team until the morning of the appeal on 18 November 2015 and the Bindmans letter only two days before that. Both letters made plain that Dillon had instructed his lawyers that he had been promised and fully expected protection in exchange for his testimony.

The Stenning letter laid out Dillon’s claims that while he had been locked up in the cells at the George Town prison – where he had been kept for his own safety due to fears he might be harmed inside HMP Northward – he had been visited by Governor Helen Kilpatrick, Foreign and Commonwealth Minister Mark Simmonds, Police Commissioner David Baines and various other high ranking police officers, none of which were logged visits.

Dillon had clearly instructed his lawyer that all of these people had promised him that he would service his sentence in the UK, that afterwards he would be given a new identity and that his family would be relocated and put into protective custody. The Stenning letter admonished the ODPP and threatened some sort of legal action (though it was not clear what) for not adhering to these promises.

These claims were never admitted to and documents exist where senior RCIPS officers deny categorically that Dillon had been promised anything by the police. Furthermore, it appears that Kilpatrick was a on a routine tour of the Cayman Islands government facility when she visited the George Town lock-up and did not go there specifically to see Dillon.

Lead prosecuting counsel Andrew Radcliffe QC did not contest th fact that Dillon was lying about this but said it was not material to the case.

Burke said that these claims, which he did not have at trial, added fuel to his arguments that Dillon was an inveterate liar and could not be trusted and may well have swayed Justice Alex Henderson, who heard the judge-alone trial and who clearly stated in his summation that the case depended on whether Dillon’s evidence that Borden had made a confession to him that he had killed Bush was reliable.

However, the appeal court found that Justice Henderson had correctly directed himself that he could believe all of Dillon’s testimony, some or parts of it. The judge had correctly dismissed some of Dillon’s testimony that were clearly lies but had accepted evidence where it had been independently corroborated by other evidence and witness testimony.

In particular, the panel pointed to cell phone evidence that placed Borden at the scene of the crime and not at home, where he claimed to have been. The trial judge had also said that there was no way Dillon could have known when he gave his statement to the police naming Keith Montague as the second shooter in the murder that Borden had contacted around that time. Montague left the jurisdiction and had has never been charged with the murder.

Dismissing the appeal, thand panel found that the letters and other evidence that emerged did not amount to material new evidence.

Brian Borden was found guilty in August 2014 of shooting Bush at point blank range in the face with a shotgun when his victim, who was still in his car when he was killed, went to pick up his girlfriend, Myra Ebanks, on 13 September 2011 at the corner of Birch Tree Hill Road and Capt Joe and Osbert Road, West Bay.

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Category: Courts, Crime

Comments (7)

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  1. Anonymous says:

    I hope he thinks long and hard about not only taking a life but also denying a child of their father. He is a punk and i wish there was a way for the victim’s family to sue him for restitution.

  2. Anonymous says:

    Justice for Once

  3. Anonymous says:

    Bunch of “Wanksters”in the Cayman Islands. Come to think of it, a bunch of “Wankers” too, literally!!

  4. Jg says:

    Unfortunately there are gangs in the cayman islands @the truman years..People in cayman love to say that but when you compare them to other countries theyre all the same. Just be thankful not as much people get killed here, but when you look at a country with 60,000 people and the whole community is shocked by one murder, the “wanna be” gang members must be doing something right…right?

    • Anonymous says:

      Friend, there are no “gang members” here in the Cayman Islands. There are some sorry individuals, much impressed by the behaviour of TV characters abroad, for sure. If you are one such person reading this, please take heed : grow up, you silly twit. This is NOT L.A., or wherever your mixed up mind has fixated on. It is the Cayman islands. For goodness sake LEAVE if you prefer the “gangster” (i.e. ‘”waste of space”) “lifestyle”. (PS Apologies to normal folk for my rather pointed use of punctuation!)

  5. The Truman Years says:

    There are no gangs in the Cayman Islands.

    • Anonymous says:

      Yes, I agree. There are groups of idiots who fancy themselves as “gang” members, but at heart they are nothing more than sorry individuals fixated with images from “Los Angeles” on American T.V.. These poor sods are little more than a bunch of “wannabees”, strutting around in sweat-inducing nylon clothing. They must be running in sweat, the poor sods, and in dire need of grandmotherly advice to take a shower.

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