Two fishermen whose convictions and sentences for the 2004 murders of three children in a fire-bombing incident in Portmore, St Catherine, were set aside by the Appeal Court in 2012 and a retrial ordered, walked free on Thursday after a Supreme Court judge ordered a “permanent stay” of the indictment charging them with the killings.

Supreme Court Judge Justice Leighton Pusey ruled that the 20-year delay in settling the matter is “unwarranted” and a third trial now would be unfair.

Emphasising that the permanent stay “is not an acquittal”, Justice Pusey said, while “the offences for which the accused are charged is serious, and there is a prevalence of these types of offences in Jamaica, and the evidence against the applicants was sufficient to set up a prima facie case against them [the Court had] to find that the delay has severely threatened the applicants in that a fair trial could not be guaranteed”.

“This is especially so, considering the cumulative effect of the following factors — unavailability of prosecution witnesses, unavailability of original witnesses which may have supported the defence, the unavailability of the alibi witnesses for the applicants, the unavailability of the transcript from the first trial and the lack of information regarding when the transcript will become available, the psychological impact the delay in the trial has had on the applicants, and the period of time between the alleged offence and the likely time within which this trial would be completed which has already exceeded 20 years,” Justice Pusey said, in handing down the decision in the Home Circuit Division of the Supreme Court, downtown Kingston.

The two men — Rohan McCarthy and Ricardo Britton — had been found guilty before a judge of the Home Circuit Court in 2010 for the murders of five-year-old twins Tyrique and Tyrone Henry and three-year-old Moesha Lee. They were sentenced to life imprisonment with eligibility for parole after 14 years. However, they mounted an appeal.

The Appeal Court, in ordering a retrial, said “in all the circumstances, the interests of justice demanded a new trial” and recommended that the retrial take place before the end of the Michaelmas Term in 2012.

The retrial did not proceed until 2014 and resulted in a hung jury.

A third trial was set for November 2023 but that did not get off the ground as attorneys Keith Bishop and Lloyd McFarlane made an application before the court for a permanent stay of the matter, citing issues surrounding the availability of witnesses and the availability of the transcript of the original trial which has not been located, among other things.

On Thursday, Justice Pusey, in reading from his draft judgment, said, “I am of the view that if the court is satisfied that a trial of the accused would not be fair in the circumstances and there would be an abuse of the process, the court can use its common law powers to order a permanent stay of the proceedings. The process of determining whether there is an abuse of process where the court is considering the effect of delay, are almost identical to that of establishing whether the right to a fair trial is violated as a result of delay”.

“The court is of the view that no directions or safeguards could adequately address or mitigate the inherent prejudices in this matter,” Justice Pusey stated further in ordering that the indictment, dated April 7, 2024, which charged the applicants with three counts of murder, be permanently stayed and ordering that the State is barred from initiating any further proceedings against the applicants in respect of the charges outlined in that indictment.

According to the facts outlined during the appeal hearings, about 1:15 on the morning of September 14, 2004, Pansy Henry, the main witness for the prosecution, was at her home at Port Henderson Road with her common-law husband, her children, and stepchildren. Tyrone and Tyrique Henry and Moesha Lee were three of her children. She was awake while the other members of her household were asleep.

On hearing footsteps outside the house and sounds like water being thrown around the house, she became suspicious. This prompted her to look through a window. She related seeing the appellants, who lived in the same community and were well-known to her, standing at the side of her house. She said one of the men lit a bottle torch and threw the torch on the house after which they both ran. The house became engulfed in flames and Tyrone, Tyrique, and Moesha perished in the fire.

According to prosecutors, before the fire, there had been an earlier encounter between the two men and Henry over their use of a tractor to dig a trench on her property. The men left, but returned with the police. According to court documents, one of the men, during an exchange in the presence of the cop, told Henry, “Burn mi a go burn you out before the night done,” to which she responded, “They will — they can find you in a bag too; two of us can dead.” The other man then said: “Ah dead da gal dey fi dead from bout ya.” The cop cautioned all the individuals and then left.

At the trial, however, the men, in unsworn statements, said they had no knowledge of the fire and learnt about it after. The alibi of the men were that they had actually been together that night as one of them had been displaced by a hurricane and had sought refuge at the home of the other.

On Thursday, veteran attorney Lloyd McFarlane, who along with attorney Russell Stewart represented McCarthy, told the media following the ruling that, “for all practical purposes, it clearly is finished”.

McFarlane, in the meantime, said it was important that the judge’s decision be publicised as he had found that oftentimes judgments at the level of the Supreme Court which establish a precedent are missed by their other colleagues on the bench as against matters decided by the Appeal Court or even the Constitutional Court.

“This is now precedent,” he declared.

Bishop, who has been the attorney on the matter from 2004 and who represented Britton, supported by Naeem Bishop and Janoi Pinnock, described the case as “extraordinary”, given the fact that it took 20 of his 28 years in the profession to settle.

“Although the judge was careful enough to say he was not relying on the constitutional provisions, in my view the common-law provisions he relied on run right alongside the constitutional provision because every Jamaican citizen is entitled to a fair trial within a reasonable time, and this is what the judge used to say that because of the 20-year delay the accused men would not have been able to get a fair trial,” Bishop said.

He said McCarthy and Britton were “very delighted that the matter is finally at an end. It has been a long road for them and they have faced two trials in the matter. It is now finally behind them. It was hanging over their heads because they were seen as murderers; it would have affected them”.