BASSETERRE, St. Kitts - GREGORY CHE SPENCER alias Duck Foot, who was convicted and sentenced to serve 18 years in prison for murder, was released by the Eastern Caribbean Supreme Court of Appeal last Monday (Feb. 10).
Spencer was convicted for shooting 27-year-old Jason ‘Worlo’ Marsham, which resulted in his death on December 6, 2006.
He appealed his conviction at the March, 2013 sitting of the Appeal Court and the judgment was adjourned. One Monday, Spencer learned that his conviction was set aside and a retrial was ordered at the liberty of the office of the Director of Public Prosecutions.
Spencer, who was represented by Dr. Henry Browne, QC and Mr. Hesketh Benjamin, appealed on three grounds:
- the appellant suffered a possible miscarriage of justice when the learned trial judge erred in law in his failure to properly direct the jury on the issue of self-defence;
- the appellant suffered a possible miscarriage of justice when the learned judge erred in law in his failure to properly direct the jury on the issue of provocation; and
- it is not for the accused to make out a prima facie case of accident. It is for the prosecution to prove that the killing was not by accident. And the prosecution failed to do so.
The first ground was dismissed but the second and third were allowed.
Regarding the first ground of appeal, Justice of Appeal Blenman stated: "It is clear that the learned trial judge did not specifically say to the jury that an intention to kill was not inconsistent with self-defence. However, this Court is satisfied that it was effectively conveyed to the jurors in clear and unequivocal terms that even if there was an intention to kill once the appellant was acting in lawful self-defence he ought to be found not guilty."
On the second ground, the Appeal Court found that the trial judge’s directions on provocation were defective and that his use of the phrase “not master of his mind” in his summation on that issue was egregious and could have misled the jury.
On the third ground, the Court of Appeal found that the trial judge did not give a clear exposition of the concept of accident.
"He failed to give a specific direction on the burden of proof paying particular regard to the issue of accident. He ought to have made it clear to the jury that it was not for the appellant to prove that the happenings resulting in the death of the deceased were an accident."
Additionally, the Court found that the trial judge failed to specifically direct the jury that the burden of proof was on the prosecution, for them to prove - beyond all reasonable doubt - that it was not an accident and was a wilful act.
"Taking into consideration the particular circumstances of this case, the interest of justice requires that a retrial be ordered. Accordingly, the Director of Public Prosecutions is at liberty to retry the appellant for the offence of murder," Justice Blenman said.
Spencer was set free by the Appeal Court. And if the DPP's Chambers chooses to retry him, he would be arrested and charged again.
