sto­ries by Derek Achong

The Court of Ap­peal has over­turned the de­ci­sion of a High Court judge to quash the in­dict­ment against a man, who has been on re­mand for mur­der­ing his un­cle for al­most two decades.

De­liv­er­ing a writ­ten judge­ment, dur­ing a vir­tu­al hear­ing, yes­ter­day morn­ing, Chief Jus­tice Ivor Archie, and Ap­pel­late Judges Nolan Bereaux and Pe­ter Ra­jku­mar up­held the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP)’s ap­peal over the judge’s de­ci­sion.

Jus­tice Ra­jku­mar, who wrote the judge­ment that was ac­cept­ed by his col­leagues, stat­ed that Kevon Nurse should not have been al­lowed to pur­sue the ju­di­cial re­view law­suit over the DPP’s Of­fice con­tin­u­ing to pros­e­cute the case af­ter 20 years.

He ruled that such civ­il law­suits on crim­i­nal pros­e­cu­tions are on­ly per­mit­ted in rare and ex­cep­tion­al cas­es where ac­cused per­sons do not have re­dress be­fore the crim­i­nal courts.

“As to the pros­e­cu­tion of the re­spon­dent af­ter more than 20 years there were al­ways avail­able to him an equal­ly ef­fec­tive and time­ly rem­e­dy in the court ex­er­cis­ing crim­i­nal ju­ris­dic­tion, in the form of an ap­pli­ca­tion to stay the pro­ceed­ings against him on the ground of in­or­di­nate de­lay re­sult­ing in an abuse of process and the in­abil­i­ty to ob­tain a fair tri­al,” Jus­tice Ra­jku­mar said.

“It has not there­fore been demon­strat­ed that, de­spite ex­tra­or­di­nary de­lay, this is such an ex­cep­tion­al case that it re­quires by­pass­ing the equiv­a­lent but spe­cialised ju­ris­dic­tion of the court be­fore which the mat­ter had al­ready been list­ed,” he added.

He ruled that Jus­tice Eleanor Don­ald­son-Hon­ey­well’s de­ci­sion in the case was based on a mis­con­cep­tion that such ap­pli­ca­tions be­fore a crim­i­nal court could not be made while ju­ry-tri­als re­main sus­pend­ed due to the COVID-19 pan­dem­ic.

“The ap­pli­ca­tion for ju­di­cial re­view failed to take in­to ac­count that a case man­age­ment Mas­ter is part­nered with a judge, who can hear such an ap­pli­ca­tion with hav­ing to await the recom­mence­ment of ju­ry tri­als, and with­out full prepa­ra­tion for such a tri­al be­ing com­plet­ed,” he said.

He sug­gest­ed that even if such an ap­pli­ca­tion was de­nied, there are ad­di­tion­al safe­guards with­in the crim­i­nal jus­tice sys­tem avail­able to him.

“The ex­is­tence of those ad­di­tion­al safe­guards in fact make the crim­i­nal tri­al process a po­ten­tial­ly more ef­fec­tive, but equal­ly time­ly al­ter­na­tive rem­e­dy, than the very rarely grant­ed ju­di­cial re­view of the DPP’s wide dis­cre­tion to pros­e­cute,” he said.

Jus­tice Ra­jku­mar not­ed that Nurse’s law­suit dealt with ap­pli­ca­tion of the DPP’s dis­cre­tion, which in­cludes pub­lic in­ter­est and pol­i­cy con­sid­er­a­tions.

“How­ev­er, these are not usu­al­ly suit­able for con­sid­er­a­tion, or read­i­ly re­view­able, by a court,” Jus­tice Ra­jku­mar said.

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 for 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.

While Jus­tice Don­ald­son-Hon­ey­well 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.

She agreed that the pub­lic in­ter­est in con­tin­u­ing the pros­e­cu­tion was out­weighed by the prej­u­dice suf­fered by him.

De­spite her de­ci­sion, Nurse was not im­me­di­ate­ly re­leased as the DPP’s Of­fice ob­tained a stay of the judge­ment pend­ing the de­ter­mi­na­tion of the ap­peal.

The DPP’s Of­fice was rep­re­sent­ed by Ian Ben­jamin, SC, Ke­ston Mc­Quilkin, and Nairob Smart. Shaun Mor­ris and Fay­ola Sandy rep­re­sent­ed Nurse. The Pub­lic De­fend­ers De­part­ment was rep­re­sent­ed by Raphael Mor­gan, Michelle Gon­za­les, Michael Mod­este and Tonya Thomas.