By Barbara Gayle, Staff ReporterA MAN who was sentenced in September last year to hang for the murder of a 12-year-old girl is to face a new trial because the Court of Appeal found that he was "gravely prejudiced" by the trial judge's misdirections to the jury.
Delroy Stewart, a labourer of Rose Hall, St. Catherine, was convicted on September 24, 2002 of the capital murder of Kimone Lewis on August 4, 2001.
The deceased, who lived in Rose Hall, was sent on an errand by her elder sister. When the girl did not return home, a search was launched for her. The search resulted in the gruesome find that night of the deceased's naked body in bushes near to the community centre in the district. She had been sexually assaulted and scalped.
CAUTIONED STATEMENT
The prosecution's case rested on a cautioned statement which the appellant gave to the police. In it, he said that he had seen the deceased pass by his kiln on the morning of the incident and called to him. He said on her return "a deportee youth" came up and at gunpoint ordered him to lift up the "informer girl" and take her into the bushes. He obeyed the deportee and he watched while the deportee raped and killed the girl.
Stewart, who was represented on appeal by Delano Harrison, Q.C., sought to have his capital murder conviction overturned on the ground of miscarriage of justice and insufficient evidence to warrant a conviction and sentence.
Mr. Harrison argued that there was a serious error at the trial presided over by Miss Justice Kay Beckford because the portion of the cautioned statement which referred to a previous conviction of the appellant should not have been read to the jury.
SERIOUS LAPSE
The Court of Appeal, comprising the Hon. Ian Forte, President of the Court of Appeal, Justice Henderson Downer, and Justice Seymour Panton, agreed with Mr. Harrison and said further that it was imperative that the jury should have been instructed as to how they were to deal with the reference to the appellant having been previously convicted and sentenced for a certain offence. "It was therefore a serious lapse for the learned trial judge to have ignored the matter and not mention it at all during the summing up. We are of the view that on this basis alone the conviction had to be quashed," the court said.
The second ground of appeal was the judge's repeated reference to the cautioned statement as a "confession".
It was the court's finding that it was misleading for the judge to have given the jury the impression that the appellant had admitted to the commission of capital murder. The court said there could be no debate that the word "confession" meant an admission of guilt. "In our view, the appellant was gravely prejudiced by the repeated and imprecise use of the word," the court said.
The appellant was charged jointly with his brother Michael Elliott who was freed on a no case submission. The court said the judge erred when she gave her reasons for acceding to the no case submission in the presence and hearing of the jury.
