Judge's 'misdirection' leads to murder retrial

BY PAUL HENRY Sunday Observer staff reporter henryp@jamaicaobserver.com

Sunday, March 14, 2010

A convicted murderer is to face retrial after the appellate court on Friday ruled that the judge, in his previous trial, had misdirected jurors on the matter of dying declaration.

In ordering the retrial for David Sergeant -- instead of setting him free -- the court noted that "persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in conduct of the trial or in his summing up to the jury".

Sergeant, a resident of East Kingston, was sentenced on October 1, 2007 to 15 years of hard labour following his conviction in the Home Circuit Court in September.

It was specified that he serve 10 years of his sentence before becoming eligible for parole.

Sergeant was arrested for the shooting death of Omar Powell in the Elletson Road Police area. Just moments before he died, Powell told an investigator on his hospital bed that he would not make it, before identifying Sergeant and another man as his shooters.

During his summation, Justice Lloyd Hibbert instructed jurors on, among other things, dying declaration.

The jurors retired and returned for further instruction on dying declaration and was told by Justice Hibbert that there is a belief that "somebody who is about to die, or think he is about to die, would therefore not be telling a lie".

"That would forward, I think, making reconciliation with God," Justice Hibbert added.

Sergeant subsequently appealed his conviction and sentence.

The appellate court said on Friday that the trial judge should have gone further in addressing the matter of the dying declaration.

"Regrettably... the learned trial judge did not point out to the jury that they should bear in mind -- when they came to consider the evidence of the statement made by the deceased -- that they did not have the advantage of the witness [Powell] coming before the court, and having what he said tested by cross-examination," the court said.

The court added: "Furthermore, in our view, he should have told the jury of the disadvantage they faced by not having the witness in the box to determine whether what he said was true or not. It was essential for the learned judge to have highlighted these weaknesses and his failure to do so was a non-direction which amounted to misdirection."

Robert Fletcher, Gladstone Wilson and Tamika Harris appeared for Sergeant.

The Crown was represented by counsel Dahlia Findlay.

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Judge's 'misdirection' leads to murder retrial