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Three cleared of armed kidnap charge after alleged victim flees Island

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Three Somerset men accused of an armed kidnap walked free from court yesterday after the alleged victim fled to Jamaica and refused to return.

Puisne Judge Charles-Etta Simmons instructed a jury to return formal not guilty verdicts against cousins Kenith and Macray Bulford and Ashley Wellman after deciding it would be unfair for them to stand trial without their accuser giving evidence.

The trio had been accused of holding 26-year-old Dwayne Reid Anderson against his will on January 2, 2010. They were further accused of conspiring to use a firearm to commit the kidnap, wounding Mr Reid Anderson with intent to do him grievous bodily harm and robbing him of $4,000 cash.

They maintained their innocence throughout the case and finally saw their names cleared yesterday after a tangled legal process lasting 19 months. Kenith Bulford, 36, and Ashley Wellman, 31, were first charged at Magistrates' Court on January 11, 2010, with wounding Mr Reid Anderson with intent to cause grievous bodily harm while holding him against his will.

Macray Bulford, 38, was charged with the same crimes three days later.

According to the ruling from Mrs Justice Simmons, police received a report “regarding a firearm” and found Mr Reid Anderson in an “injured state” on The Glebe Road, Pembroke. He received hospital treatment but refused to tell officers what happened, beyond saying the incident arose over a chain.

After he was taken to a safe house, he told police in an interview that the three defendants forced him to accompany them to the scene, beat him over the head with a gun and bound him with rope.

All three men were charged, and remanded into custody after their initial appearances at Magistrates' Court. However, prosecutors dropped the charges against them on February 12, 2010, after Mr Reid Anderson withdrew his complaint in the case. He later explained this was because he was scared for himself and his family, although his sworn statement saying as such was lost after arriving at the Department of Public Prosecutions.

By this time, Mr Reid Anderson, who has a history of dishonesty offences, was serving a prison sentence in Westgate on an unrelated matter.

The charges were reinstituted in April 2010, with prosecutor Cindy Clarke saying fresh evidence had come to light. According to the judge's ruling, this was forensic evidence.

A further charge was added against all three men robbing the alleged victim of $4,000 cash as Mr Reid Anderson told police they took this from him during the incident. They were bailed until a Supreme Court appearance on June 1 2010, when a trial date was fixed for November 15 2010.

By September 2010, according to the judge, Mr Reid Anderson indicated he was willing to give evidence at the trial and arrangements got underway for him to enter “police protective custody” once he was released from prison. However, he then changed his mind and fled to Jamaica the day after he was released from prison, which was eight days before the trial was due to begin. He has dual Jamaican and Bermudian nationality, and has not returned from Jamaica since.

Police made efforts to persuade Mr Reid Anderson to come back from Jamaica, including sending two officers over to see him in March 2011. He refused to meet with them but told them via telephone that he was afraid of the defendants and afraid for his family in Bermuda.

The trial was postponed until August 2 this year, when a jury of three men and nine women was selected to hear the case. As soon as the panel was sworn in, lawyers asked for the case to be adjourned for legal arguments.

Prosecutor Susan Mulligan then made an application under the Police and Criminal Evidence Act for the alleged victim's two police statements and two recorded police interviews to be read into evidence, due to his absence. Ms Mulligan said it would be in the interests of justice to do so, as there was forensic evidence to support the statements.

The defence objected, pointing out the alleged victim sought to withdraw his complaint on multiple occasions. Legal arguments over the issue continued until the beginning of this week. The judge heard evidence in the absence of the jury from around ten witnesses, and ruled on the issue on Tuesday.

She told the lawyers it would not be fair for the trial to proceed without Mr Reid Anderson available as a witness, especially since there are “irreconcilable differences” between his statements of complaint and his statements withdrawing the charges.

“As defence counsel have pointed out, the interest of justice cannot be met in circumstances where the veracity of the complainant has been so thoroughly undermined by him himself,” she said.

“The doubtfulness of his veracity is only strengthened by his prior record of dishonesty offences. As for supporting forensic evidence, there is none in relation to Mr Wellman. Such as there is in the case of the two other defendants, it borders on tenuous at best.

“The facts of this case cry out for a cross-examination of the defendant.”

Her ruling could not be reported until the jury returned directed verdicts in the case yesterday. It resulted in prosecutor Susan Mulligan offering no further evidence in case, and the judge directing the jury to find the men not guilty.

Assistant Police Commissioner David Mirfield said yesterday that the service respects the decision of the court, but that the choice to prosecute was the correct one.

“This has been a difficult case from the outset, but one that has always passed the prosecution threshold,” he said. “We remain confident that the decision to prosecute was right when all of the evidence was taken into account.”

He said that while the Department of Public Prosecutions is in charge of witness protection, the police work alongside them to reassure witnesses so they feel confident in testifying.

“On this occasion the witness failed to attend court, and while I will make no comment as to why, or as to whether the witness was in any programme, what I will say is we have seen significant results over the past year where witnesses have provided valuable evidence in Supreme Court.

“The Bermuda Police Service and Justice Protection Administration Centre will work together to try and allay witness fears to ensure that the best possible evidence is provided to the court in as secure an environment as possible.”

Photo by Glenn Tucker Kenith Bulford leaves Supreme court One wednesday morning after being found not guilty with two other men of committing armed kidnap as the alleged victim has fled to Jamaica and refused to return to give evidence.
Photo by Glenn Tucker Macray Bulford leaves Supreme court One wednesday morning after being found not guilty with two other men of committing armed kidnap as the alleged victim has fled to Jamaica and refused to return to give evidence.
Photo by Glenn Tucker Ashley Wellman leaves Supreme court One wednesday morning after being found not guilty with two other men of committing armed kidnap as the alleged victim has fled to Jamaica and refused to return to give evidence.
Make witness pay — OBA

A man who pulled out of giving evidence against three men he accused of abducting him at gunpoint ought to foot the bill for the aborted case.

That was the view expressed by Shadow Justice Minister Trevor Moniz after the accused trio, Kenith Bulford, Macray Bulford and Ashley Wellman walked free from court yesterday [see main story].

Although Kenith Bulford funded his own lawyer, Saul Froomkin QC, the others had their lawyers, Elizabeth Christopher and Charles Richardson, paid by Legal Aid.

The case dragged on for 19 months while prosecutors sought to overcome the reluctance of the complainant, Dwayne Reid-Anderson to testify in court. He flew to Jamaica eight days before the trial was originally listed to start last November, and refused to return to Bermuda. Mr Reid Anderson repeatedly changed his mind about testifying.

Legal Aid lawyers are paid at a rate of $330 per hour each time they appear in court. There have been several preliminary hearings in the case, and it has been subject to legal arguments at Supreme Court for the past two weeks.

Speaking after the accused men had their names cleared, Macray Bulford's lawyer Elizabeth Christopher remarked: “These proceedings have been a colossal waste of money and time.”

Asked for his view on the matter, Mr Moniz said: “It is unfortunately a very good illustration of the problems we face. We get so many cases funded by Legal Aid and so many of them are unsuccessful for one reason or another.”

He added: “One thing that comes to mind is whether complainants need to face sanctions for the cost of public time and money. Someone should be going after this guy and saying 'you have cost us all this money and you should pay it back.' This money could have been better spent on something else.

“Was his complaint real or false? If it was false, it should never have been made. If it was real, it should have been followed through with.

“This is a pretty stark case of someone wasting public money.”

Asked for his view, Justice Minister Michael Scott said: “The case was always going to be one that faced challenge in the absence of the complainant at trial; accordingly, the decision must be viewed in the context of fairness to the accused.”

However, he said questions about the cost of the investigation and trial, and whether the new witness protection scheme could prevent similar cases, should be directed to the Commissioner of Police and Minister of National Security.

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Published August 18, 2011 at 10:00 am (Updated August 18, 2011 at 10:32 am)

Three cleared of armed kidnap charge after alleged victim flees Island

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