DEREK ACHONG

Af­ter spend­ing a lit­tle over two decades on re­mand and fac­ing five failed tri­als, a man from Laven­tille ac­cused of mur­der­ing his un­cle has been freed fol­low­ing a civ­il law­suit over breach­es of his con­sti­tu­tion­al rights caused by the de­lay in pros­e­cut­ing him. 

De­liv­er­ing a judge­ment against the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) on Mon­day, High Court Judge Eleanor Don­ald­son-Hon­ey­well quashed the long­stand­ing mur­der in­dict­ment against Kevon Nurse as she ruled that he would be prej­u­diced by fac­ing a sixth tri­al. 

Don­ald­son-Hon­ey­well said: “The fail­ure of the De­fen­dant to dis­con­tin­ue the pros­e­cu­tion for the charge of mur­der against the Claimant was un­rea­son­able in light of the de­lay, mul­ti­plic­i­ty of tri­als, failed con­vic­tions, the tri­al Judge’s com­ments on in­con­sis­ten­cies in the tes­ti­mo­ny of the main pros­e­cu­tion wit­ness and prej­u­diced faced by the Claimant.”

In Jan­u­ary 2001, Nurse was charged with mur­der­ing his un­cle Lester Ash, who was shot dead at his home at Suc­cess Vil­lage in Laven­tille on Christ­mas Day in 2000. 

The State was re­ly­ing on the ev­i­dence of Ash’s 12-year-old neigh­bour, who claimed she briefly saw Nurse be­fore he put on a ski mask and en­tered his house with a gun. 

Nurse de­nied any wrong­do­ing but ad­mit­ted that he had a con­fronta­tion with Ash hours be­fore the in­ci­dent and was beat­en. He claimed that at the time of the mur­der he was seek­ing med­ical at­ten­tion of the in­juries he suf­fered in the scuf­fle with Ash.

Nurse’s first tri­al in 2002 was abort­ed. Al­most a year lat­er, Nurse faced a re­tri­al and was con­vict­ed of the crime. His con­vic­tion was over­turned on ap­peal and a re­tri­al was or­dered. 
Nurse had two oth­er tri­als that were abort­ed in 2008 and 2011. His fifth tri­al in 2019 end­ed with a hung ju­ry, who could not de­cide on a unan­i­mous ver­dict for him. 

In the judge­ment, Jus­tice Don­ald­son-Hon­ey­well not­ed that the case passed through the hands of 20 judges in­clud­ing for­mer Pres­i­dent An­tho­ny Car­mona and cur­rent Pres­i­dent Paula-Mae Weekes be­fore Nurse mount­ed the civ­il le­gal chal­lenge be­fore her. 

“The Claimant’s ex­ten­sive time in de­ten­tion with­out con­vic­tion is demon­strat­ed by the tran­si­tions in the lives of many of the peo­ple in­volved in his mat­ter,” Jus­tice Don­ald­son-Hon­ey­well said.

“The pros­e­cu­tion’s main wit­ness went from be­ing a child wit­ness around the age of 12 to be­com­ing an adult, mov­ing abroad, get­ting mar­ried and hav­ing at least two chil­dren,” she added. 

While the judge not­ed that some of the de­lays in Nurse’s case were due to him pe­ri­od­i­cal­ly not hav­ing le­gal rep­re­sen­ta­tion and judges re­cus­ing them­selves hav­ing rep­re­sent­ed or pros­e­cut­ed him be­fore join­ing the bench, she said that sig­nif­i­cant de­lays were due to the DPP’s Of­fice prob­lems with hav­ing the wit­ness tes­ti­fy. 

Jus­tice Don­ald­son-Hon­ey­well stat­ed that due to the pas­sage of time Nurse would face dif­fi­cul­ties in prov­ing his al­i­bi as he lost con­tact with the wit­ness that placed him at the hos­pi­tal. 
She agreed with Nurse’s lawyer Shaun Mor­ris that the pub­lic in­ter­est in con­tin­u­ing the pros­e­cu­tion was out­weighed by the prej­u­dice suf­fered by him.

“It is clear, as sug­gest­ed by the Claimant, that each suc­ces­sive tri­al has be­come in­creas­ing­ly op­pres­sive, par­tic­u­lar­ly as there is no change in the ev­i­dence be­ing of­fered by the De­fen­dant in ad­di­tion to the fail­ure to se­cure a con­vic­tion,” she said. 

“The De­fen­dant’s omis­sion to suf­fi­cient­ly con­sid­er these rel­e­vant fac­tors ren­ders the de­ci­sion to pros­e­cute a sixth tri­al un­rea­son­able,” she added. 

While Jus­tice Don­ald­son-Hon­ey­well quashed Nurse’s in­dict­ment, he was not im­me­di­ate­ly freed as she grant­ed a 28 day stay of ex­e­cu­tion of her judge­ment for the DPP’s Of­fice to de­cide if it wants to ap­peal. 

She al­so or­dered the State to pay Nurse’s le­gal costs for bring­ing the law­suit. 
The DPP’s Of­fice was rep­re­sent­ed by Mary Davis and Nairob Smart.