A LAVENTILLE man who has already spent two decades in prison on remand will not have to face a sixth trial. A High Court judge has quashed his indictment for the murder of his uncle in 2000, at Success, Laventille.
Kevon Nurse, also known as Kevon Benoit, has appeared before some 25 judges both for five trials and status hearings, and was expected to face a sixth trial before he challenged the Director of Public Prosecutions' intent to proceed.
In a written decision on Monday, Justice Eleanor Donaldson-Honeywell quashed the indictment against Nurse on the ground of delay.
While she noted there was no constitutionally protected right to a fair trial within a reasonable time, the judge said the failure of the DPP to discontinue the prosecution was unreasonable because of delay, the multiplicity of trials and failed convictions.
She also pointed to the last trial judge’s comments on the inconsistency of the testimony of the main prosecution witness and the prejudice Nurse faced.
“It cannot be ignored that one of the major factors involved in the prejudice to the claimant in the present case is delay. To allow a sixth retrial to proceed and leave the claimant to rely on the safeguards available at trial would not duly address the prejudice he has faced.
“He would remain in detention without conviction and be further prejudiced by additional delays while awaiting the sixth trial."
Donaldson-Honeywell also said the extent of the additional delay might be hard to ascertain owing to the current global pandemic and restrictions preventing jury trials.
The DPP was ordered to pay Nurse’s legal costs for the judicial review claim.
In 2019, Justice Lisa Ramsumair-Hinds ordered a retrial for Nurse after jurors returned deadlocked after four hours of deliberations.
Nurse was before the court for the murder of his uncle Lester Ash on Christmas Day 2000, at Success, Laventille.
Ramsumair-Hinds was the fifth judge before whom Nurse went on trial. He had also appeared in 2000 before Justice Rajendra Narine; in 2003 before Justice Paula-Mae Weekes; before Justice Hayden St Clair Douglas; and again before Justice Alice Yorke-Soo Hon.
His trials before Narine, St Clair Douglas and Yorke-Soo Hon were aborted before they went to the jury for deliberation.
His trial before Weekes led to his conviction on June 18, 2003, but a retrial was ordered when he was successful at his appeal.
Nurse also appeared before at least 20 judges for pre-trial hearings and his case was adjourned either because the judges had to recuse themselves, Nurse was unrepresented or time was required by either side because of the unavailability of witnesses.
In October 2020, Nurse received the court’s permission to proceed with his judicial review claim in which he asked for a review of the DPP's decision to proceed with sixth trial. In asking for the indictment against him to be permanently stayed, he complained that the continued prosecution was an abuse of process.
Nurse complained of the mental anguish he has suffered throughout the years in preparing for his trials while maintaining his innocence and of “participating in the criminal justice process without seemingly an end in sight.”
The judgment said the DPP was fortified in his view that the case passed the no-case stage twice, before two independent judges who were satisfied that the prosecution’s evidence was such that a jury, properly directed, could convict Nurse for the offence.
Nurse was accused of contributing significantly to the delay by his repeated insistence that he wished to represent himself and his “penchant to fire his attorney” once his trials began.
At his trials, the prosecution presented evidence that on Christmas Day, at about 9 am, Nurse had an argument with his uncle. He was allegedly beaten and sought treatment at the Port of Spain General Hospital, Eric Williams Medical Complex in Mt Hope and at the Arima District Health Facility.
Later that day, a neighbour, who was 13 at the time, testified that she briefly saw the profile of a man who put on a ski mask and went into Ash’s apartment before she heard gunshots. She also saw when the man left.
Of the delay aspect, Donaldson-Honeywell said Nurse’s extensive time in detention, without conviction, was demonstrated by the transitions in the lives of many of the people involved in his matter. 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 noted.
She also said there were significant delays directly attributable to the preparedness of the State to proceed with trial, including the unavailability of the main witness, who lives abroad. She also noted the recusal of some judges and the trial process which led to re-trials, but said Nurse also contributed, in some part, to the delays.
“Though the prosecution case retains some strength with their main witness still available and prepared to give evidence, the significant lapse of time has impacted on the prospect of conviction. The reliability of witness evidence after this period of time is significantly reduced,” the judge said.
However, she pointed to statements by Ramsumair-Hinds at the end of the fifth trial which questioned the reliability of the evidence of the main witness, adding that if the DPP had had sight of these statements, he might have concluded that the case could not pass the first test of the evidential stage.
Nurse was represented by attorney Shaun C Morris. The DPP was represented by attorneys Mary Davis and Nairob Smart.