DEREK ACHONG

Se­nior Re­porter

The Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) has dis­con­tin­ued the case against two men charged with mur­der af­ter it was pre­vent­ed from util­is­ing the ev­i­dence pre­vi­ous­ly giv­en by a de­ceased eye­wit­ness due to its re­peat­ed de­lays in ap­ply­ing to do so. 

Randy "Sa­roop" Flem­ming and Okachuk­wn "Chanka" Moyo were freed by High Court Judge Sherene Mur­ray-Bai­ley af­ter State pros­e­cu­tors an­nounced their in­ten­tion to present no fur­ther ev­i­dence against them. 

The duo was charged with mur­der­ing Ja­son "Ras­ta Man" Fuller­ton on March 13, 2009. 

Fuller­ton was walk­ing on a track off Ram­samooj Trace in Mara­bel­la when he was shot sev­er­al times. 

The duo was ar­rest­ed and charged af­ter a woman, Ali­cia McKen­zie, claimed that she saw Moyo and an­oth­er man shoot Fuller­ton af­ter Flem­ming threat­ened to kill him (Fuller­ton) ear­li­er that day. 

She al­so claimed that Flem­ming and an­oth­er man were present when Fuller­ton was shot and they ran away with the two shoot­ers. 

McKen­zie was mur­dered al­most a month af­ter Fuller­ton. 

How­ev­er, her state­ments im­pli­cat­ing the duo, which she gave to homi­cide de­tec­tives be­fore her death, were used in the duo's pre­lim­i­nary in­quiry and dur­ing their first tri­al in 2018. 

Their first tri­al end­ed in a hung ju­ry with ju­rors un­able to unan­i­mous­ly de­cide on their guilt or in­no­cence. 

Dur­ing case man­age­ment hear­ings in prepa­ra­tion for their re­tri­al, State pros­e­cu­tors sig­nalled their in­ten­tion to ap­ply un­der Sec­tion 15C of the Ev­i­dence Act to utilise McKen­zie's state­ments again. 

Af­ter they re­peat­ed­ly missed ex­tend­ed dead­lines for of­fi­cial­ly fil­ing the ap­pli­ca­tion, the case was set for tri­al. 

On the eve of the start of the re­tri­al, the ap­pli­ca­tion was filed and pros­e­cu­tors sought re­lief from their sanc­tion of not be­ing able to use the state­ments due to their pro­ce­dur­al de­lays.

They al­so claimed that the judge did not have the pow­er to im­pose the sanc­tion.  

De­liv­er­ing a rul­ing, last Fri­day, Jus­tice Mur­ray-Bai­ley re­ject­ed the ap­pli­ca­tion as she stat­ed that the Crim­i­nal Pro­ce­dure Rules ex­plic­it­ly em­pow­ered the court to im­pose con­se­quences for non-com­pli­ance.

“The pow­ers grant­ed to the court are clear, and they in­clude the au­thor­i­ty to spec­i­fy the con­se­quences of fail­ing to com­ply with di­rec­tions,” Jus­tice Mur­ray-Bai­ley said. 

“The pros­e­cu­tion has court­ed these con­se­quences through per­sis­tent non-com­pli­ance,” she added. 

She de­scribed the pros­e­cu­tion’s ap­proach as a “ta­pes­try of pro­cras­ti­na­tion” af­ter re­peat­ed fail­ures to com­ply with court or­ders.

Guardian Me­dia un­der­stands that the DPP's Of­fice has al­ready sig­nalled its in­tent to ap­peal the rul­ing over the gen­er­al abil­i­ty of ju­di­cial of­fi­cers to im­pose such sanc­tions but not specif­i­cal­ly how it was ap­plied in the duo's case. 

In a state­ment is­sued short­ly af­ter the DPP's Of­fice an­nounced its de­ci­sion, yes­ter­day, Flem­ming's lawyer Kevin Rati­ram in­di­cat­ed that he will be fil­ing a ma­li­cious pros­e­cu­tion case over what tran­spired in the case. 

Flem­ming was al­so rep­re­sent­ed by An­nalee Gir­war. Moyo was rep­re­sent­ed by Stephen Wil­son, Shaunelle Hamil­ton, and Lau­ri­na Ramkaran, all from the Pub­lic De­fend­ers' De­part­ment (PDD). 

The DPP's Of­fice was rep­re­sent­ed by Sher­von Nor­ie­ga and Maria Lyons-Ed­wards.