AFTER spending 17 years in prison, a La Brea man was on Tuesday freed of the 2003 murder of his friend Mark Brown – a Jamaican who was also a resident in the US.
Justices of Appeal Alice Yorke-Soo Hon, Prakash Moosai and Mark Mohammed on Tuesday decided against ordering a retrial for Kelloy Koon Koon.
It was Koon Koon’s second appeal. He won the first appeal of his conviction after he successfully argued that the written instructions he gave to his lawyer at the time were not advanced by his trial attorney, whom, he claimed, prepared another defence which was contrary to his instructions and to the statement he gave to the police after Brown’s death on February 1, 2003.
A retrial was ordered at the time and Koon Koon was again convicted in 2015. He appealed his conviction again on the basis that the trial judge in the second trial made an egregious error by failing to give an accomplice warning in a case where the main witness was allegedly an accomplice.
In February, the State conceded on the point that the judge failed to give a proper direction and the court invited submissions on whether a retrial should be ordered.
In arguing against one, Koon Koon’s attorneys Jagdeo Singh, Daniel Khan, Ula Nathai-Lutchman and Michelle Gonzales, submitted that the balance of justice was tipped in favour of not ordering a new trial. They argued, Koon Koon has already spent some 17 years in prison and there was a strong possibility it would be some time before a third trial can take place.
They also pointed to the strength of the prosecution’s case, particularly that both of the State’s witnesses may have had an interest of their own to serve, resulting in the case against Koon Koon being seemingly weak.
In agreeing that it would be disturbing to order a retrial, even after considering the rules of public policy of maintaining the criminal justice system by having the issues fully ventilated at trial, the Appeal Court judges also pointed to the delay of having to wait for the notes of evidence from the first trial before the second one could start.
At Koon Koon’s trials, the prosecution’s case rested mainly on the evidence of the driver of the car he hired to take him and Brown to Debe. The witness testified that he was told to turn onto the M2 Ring Road and was asked to drive into a dirt road and stop. The driver said he needed to “pee” and got out of the car. While crossing the road, he heard two gunshots. When he went back to the car, he saw Brown bleeding from the neck. He said Koon Koon wiped blood off his hands and instructed him to drive off.
They drove to Pleasantville where, according to him, the car was cleaned.
At his trials, Koon Koon denied killing Brown and called a witness who supported his alibi that they were playing “whappee” and liming on the road in Vessigny before going to a club.
At his first trial, Koon Koon testified that he cried when he identified his friend’s body at the mortuary.
The State was represented at the appeal by Assistant Director of Public Prosecutions George Busby.