Two men freed of 2009 murder charge

Two men charged with a 2009 murder were freed on Wednesday after the State could offer no evidence against them.

Prosecutors repeatedly failed to file the necessary application to admit the statements of its key witness, who has been dead for nearly 16 years.

Before Justice Sherene Murray-Bailey were Randy "Saroop" Flemming, and Okachukwn "Chanka" Moyo, charged with Jason Fullerton's murder.

On March 13, 2009, Fullerton was shot dead at Ramsamooj Street, Marabella. Shortly after, witness Alicia McKenzie gave statements to the police, claiming she had seen Moyo and and another man shoot the victim, while Fleming and another man were also present.

But just weeks later, on March 29, 2009, McKenzie was murdered.

The case first went to trial in 2017 at the San Fernando High Court, where the State successfully admitted McKenzie’s statements into evidence under Section 15C of the Evidence Act, which allows for the statement of a deceased witness to be used in court. However, the jury failed to reach a verdict, resulting in a retrial.

When preparing for the retrial, the State again sought to admit McKenzie’s statements, but despite repeated extensions granted by the court, the application was never filed.

In April 2024, Justice Sherene Murray-Bailey ordered that the prosecution file its Section 15C application by May 29, 2024, warning that failure to comply without reasonable explanation would result in the State being barred from using McKenzie’s statements at trial. By July 5, 2024, the application still had not been filed, and the judge refused another extension, enforcing the consequence set out in her previous order.

Despite this, the State waited until the evening of January 31—just two days before the trial was set to begin—to refile its 2017 Section 15C application. Prosecutors argued that the previous application should automatically be included in the retrial and asked for relief from the court’s July 5 ruling.

On February 14, Murray-Bailey delivered a written ruling rejecting the State’s request for relief, pointing to the prosecution’s repeated non-compliance with court directions and its unjustifiable delay.

She said, “This application of the prosecution, ostensibly for a relief from consequences imposed several months ago, having been filed on the eve of the trial, meant that an adjournment had to be granted to ensure that counsel for Flemming and Moyo had an opportunity to respond to the prosecution’s application and the court had an opportunity to comprehensively address the arguments raised.

"We have lost more than ten working days of trial time, which cannot be easily recovered and in circumstances that were completely avoidable.

“This court assiduously manages its docket to ensure that each matter is given an appropriate share of its resources, based on the complexity and nature of the matter.

“Scheduled on the heels of this matter is another capital matter in which that accused has also been on remand for approximately fifteen years.

"To extend the time for the trial of this matter will create a knock-on effect that will negatively impact other matters which have already been allotted a fair share of this court’s resources. Those parties patiently await their turn in the halls of justice.

“Moreover, undoubtedly, public trust and confidence in the administration of justice is pivotal. It is critical that the rule of law obtains and it is imperative that court orders are not flagrantly disregarded or treated with impunity without consequence.

“Parties involved in criminal matters must not be permitted to selectively comply with judicial directives, adhering to some while defying others without reasonable explanation. A paradigm shift in the culture of criminal litigation is imperative to uphold the integrity and authority of the judicial system.”

On February 19, the prosecution, having no further evidence to offer against the accused, conceded the case. The judge then formally found both Fleming and Moyo not guilty.

Fleming was represented by attorneys Kevin Ratiram and Annalee Girwar, while Moyo was defended by Stephen Wilson, instructed by Shaunelle Hamilton and Laurina Ramkaran.

Ratiram announced his intention to file a malicious prosecution lawsuit against the State, arguing that after the July 5, 2024 ruling, the prosecution knew it had no incriminating evidence but still proceeded with the case.