Brian Emmanuel Bodden v R - Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE BRIAN EMMANUEL BORDEN v. REGINA INDICTMENT NO.: 77/12 Appearances: Mr. Nick Hoffman of Priestleys for the Applicant/Defendant Ms. Candia James for the Respondent/Crown Before: Justice Carol Beswick (Actg.) Heard: 7th September 2012 RULING ON APPLICATION FOR BAIL

¶ [1] Mr. Robert Mackford Bush was murdered on the 13th September 2011. He was shot by two gunmen whilst seated in a car and he died as a result of multiple gunshot wounds. There is no dispute about those facts.

¶ [2] The Applicant, Brian Borden, has been charged with his murder and also with unlawful possession of a firearm, and has been in custody since the 7th August 2012. He now applies for bail. SUBMISSIONS FROM THE RESPONDENT/CROWN

¶ [3] The Crown objects to the Court granting bail to the Applicant/Defendant on three grounds, submitting that the Defendant is a flight risk, he is likely to interfere with witnesses; and there is a risk of re-offending.

¶ [4] Counsel for the Crown submits that the case for the Prosecution is very strong, and the offences facing the Defendant are serious – carrying the possibility of lengthy sentences – and because of that, the Defendant is likely to flee from the Cayman Islands and is also likely to interfere with witnesses.

¶ [5] The Crown regards its case against this Applicant as being strong, primarily because Mr. Marlon Dillon, on the 10th July 2012, gave a statement in which he says that this Defendant boasted to him that he had killed Mr. Robert Mackford Bush, and described the incident in detail, including the extent of the injury to Mr. Bush’s body.

¶ [6] The Crown submits further that the information in Mr. Dillon’s statement is supported by other independent evidence, including medical evidence.

¶ [7] The Crown argues that the murder involved warfare between gangs and alleges that the deceased and the Defendant were associated with opposing gangs. According to the Prosecution, Mr. Dillon also had a close association with a member of a gang, and therefore was privy to gang-related activities. SUBMISSIONS FROM THE APPLICANT/DEFENDANT

¶ [8] The Defence submits that details of the manner of killing Mr. Robert Bush, and the condition of his body were public knowledge in the communities involved and Mr. Dillon did not obtain any information on the killing from the Defendant himself, but most likely by simply being a member of the community.

¶ [9] Counsel for the Defendant urges the Court to regard Mr. Marlon Dillon as being an unreliable witness, because it was not until he himself was charged with serious offences, including robbery, and had been incarcerated for eleven days, that he chose to give the police all this alleged information. This should be viewed with some suspicion because Mr. Dillon had allegedly had the information from this Applicant for months prior to his incarceration that is, from February or March 2012.

¶ [10] Counsel for the Defendant submits that the eyewitness who was present at the murder scene has made conflicting statements as to what occurred, and obviously would therefore not be reliable.

¶ [11] In summary, the Defence submits that the evidence is weak and it would follow that the Defendant would be anxious to have his day in Court and would not be a flight risk. THE LAW

¶ [12] In the matter of R v. Whorms [2008] CLJR 188 the learned Chief Justice provided guidance on the interpretation of the Bail Law as it affects entitlement to bail.

¶ [13] Section 17(2) of the Bail Law provides that a person accused of murder and also a person accused of any offence against the Firearms Law is not entitled to bail.

¶ [14] This Applicant is accused of murder and unlawful possession of a firearm and is thus regarded as not enjoying an entitlement to bail. However, s.19 of the Bail Law allows for the exercise of judicial discretion to offer bail, even where bail is not an entitlement, after certain relevant circumstances are considered. Section19 provides: "19. A court or police officer, in order to come to a conclusion for the purpose of section 18, may take into consideration (amongst other things) – (a) the nature and seriousness of the offence (and the probable method of dealing with the defendant or offender); (b) the character, antecedents, associations and community ties of the defendant or offender; (c) the defendant’s or offender’s record as respect the fulfillment of his obligations under previous grants of bail (whether granted under this Law or otherwise); and (d) in the case of a person referred to in section 17(1)(a), the strength of evidence of the defendant having committed the offence."

¶ [15] Section 18 of the Bail Law (2010 Revision) provides for certain circumstances in which bail should not be granted. "18. A court or police officer shall grant bail to a person who is entitled to bail under this Part unless – (a) the court or police officer is satisfied the person, if released on bail would – (i) fail to surrender to custody; (ii) commit an offence while on bail; or (iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or another person; (b) the court or police officer is satisfied the person should remain in custody for his protection or welfare; ...." ANALYSIS

¶ [16] It may well be that, as Defence counsel posits, most community members know the details of the killing of Mr. Robert Mackford Bush. The reality, however, is that Mr. Dillon has made himself available to testify in that regard, relying, as he alleges, on the actual words of Mr. Borden, who is accused of the crime.

¶ [17] The fact that almost a year had elapsed between the murder of Mr. Robert Bush on the 13th September 2011 and the statement by Mr. Dillon on the 10th July 2012 makes clear to me that any witness or witnesses that there may be are slow to come forward. Indeed, the witness who was with the deceased at the moment of his fatal wounding vacillates in her account of the killing.

¶ [18] I view these facts as being indicative of an offence having been committed in which there is difficulty in obtaining evidence to put before the Court to allow for timely prosecution. It is likely therefore that any such witnesses who might be available would have the real risk of being interfered with, in order to continue the delay or prevent the trial, thereby thwarting the course of justice.

¶ [19] At this time, the evidence against this Defendant in my view is very strong.

¶ [20] There is, to my mind, a very real risk of the Defendant committing an offence if released on bail – especially in circumstances where, for so many months, the situation has been such that evidence, sufficient to identify the murderer, has been slow in being obtained.

¶ [21] I bear in mind that the main witness, Mr. Dillon is, at the moment, not at liberty to move freely within the community and therefore the possibility of committing an offence directed at Mr. Dillon, or interfering with him, is small.

¶ [22] There are, however, other witnesses whose evidence, when considered with evidence from Mr. Dillon, may be useful. They too must be considered.

¶ [23] The offences this Defendant faces are very serious and they carry with them the possibility of lengthy sentences. He has several previous convictions which may result in an increase in any sentence which might be imposed in the event of a verdict of guilt.

¶ [24] Given all the circumstances, I conclude that this Applicant, Mr. Borden, despite his Caymanian connection, is a flight risk.

¶ [25] It is my opinion that the Prosecution has established that bail should not be granted. I see no exceptional circumstances to cause me to exercise my discretion and grant this Applicant bail.

¶ [26] I am mindful of the fact that the Defendant’s trial date would likely not be proximate, and that he has been in custody for more than a month. However, there exists the very real risk of him offending while he is on bail, and/or of his fleeing these Islands.

¶ [27] Consequently, the Defendant’s application for bail is refused.