Fishermen accused of murdering three children freed after 20 years

Two fishermen who have been before the court for 20 years in connection with the September 2004 killing of three children in Portmore, St Catherine, and have twice been tried, were today freed after a third trial was aborted.

Justice Leighton Pusey this afternoon ordered a permanent stay in the matter, noting that the delay in the case would severely prejudice the men getting a fair trial.

He also barred the State from initiating any further action against the men in respect of the charges.

The judge’s ruling followed an application from defence lawyers Lloyd McFarlane and Keith Bishop.

Rohan McCarthy and Ricardo Britton were charged with the murders of five-year-old twin boys Tyrique and Tyrone Henry and three-year-old Moesha.

The children perished in a fire on September 14, 2004, which allegedly started after the accused threw bottle bombs on their homes.

Both men were convicted in 2006 and sentenced to 14 years to life, but appealed their sentences, which were set aside and a new trial ordered.

The accused won their appeal on the grounds that the trial judge had failed to adequately instruct the jury on a number of significant issues.

In the second trial, which ended in October 2014, the jury failed to reach a verdict.

Consequently, a third trial was set for April 26, 2021 but was rescheduled for November 27 of last year.

However, when the matter was raised, the defence attorneys made submissions for a permanent stay of the matter, citing abuse of process, among other reasons.

Justice Pusey, in delivering his ruling today in the Home Circuit Court said, “While the court knows that the offences for which the defendants are charged are very serious, that there is a prevalence of these types of offences in Jamaica and that the evidence was sufficient to set out a prima facie case against them, the court finds that the delay has severely prejudiced the applicants in that fair trial would not be granted."

He listed factors, such as the unavailability of prosecution witnesses, alibi witnesses for the defendants, the unavailability of the transcript from the first trial and a lack of information about when the transcript would be ready, which would contribute to an unfair trial.

He noted that the prosecution had raised the point, with respect to the abuse of process, that the court has to be very careful that it does not trespass on the constitutional powers that exist.

Justice Pusey said “There has been a lot of debate as to whether a judge sitting alone in a matter like this can then make an order under the Constitution.

“But I say for one to understand it this way. The abuse of process indication is something which is much wider and does not only deal with delays but can deal with other factors. It's a common-law power that still resides within the courts and the court can exercise it at any time.”

Justice Pusey said the abuse of process caused by delay runs close to breaching the rights to a fair trial and in this specific case the delay was unwarranted, which led to the court making the order.

McFarlane represented McCarthy while Bishop and Russell Stewart represented Britton.

- Tanesha Mundle

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