OVERREACH

Jamaica’s Court of Appeal has quashed a 2019 murder conviction, criticising Chief Justice Bryan Sykes for his conduct during the trial and warning judges about overstepping their role in court.

The chief justice is the head of the judiciary.

In a unanimous judgment delivered on Friday, Justices Jennifer Straw, Nicole Foster-Pusey, and Vivene Harris overturned the conviction of Conroy Stephenson for the murder of Nicholi Nesbeth, entering a formal verdict of acquittal. While the jury’s verdict was not “palpably wrong” based on the evidence, the appellate court concluded that Sykes’ repeated interventions compromised the trial’s fairness.

“The learned Chief Justice descended into the arena,” Straw wrote.

The judgment noted that Sykes’ “excessive cross-examination” of defence witnesses went far beyond clarification, effectively inviting the jury to disbelieve the defence. The court also ruled that a retrial would not be in the interests of justice.

Stephenson had been convicted in February 2019 in the Home Circuit Court for Nesbeth’s 2014 murder in Seaview Gardens, St Andrew. He was sentenced to 16 years in prison, with parole eligibility after 10 years.

The prosecution relied heavily on testimony from the deceased’s girlfriend, Shanice Robinson, who said she saw Stephenson, known as ‘Cool Walk’, pointing a gun at Nesbeth’s chest moments after she heard what she described as a single explosive sound and saw “like fire, like it go in the sky and boom”.

According to Robinson, Nesbeth then called to her: “Shanice! Shanice! Dem shoot me. You see who shoot mi Shan-Shan? Look, look a who shoot mi and tell mi.”

The defence presented an alibi. Stephenson told the court he had been at home working on a school project for his daughter at the time of the shooting. Two witnesses, Tavajay Tennant and Sarafina McIntosh, corroborated his account.

JUDGE'S INTERVENTIONS

On appeal, Stephenson argued that the verdict was unreasonable and that the jury failed to properly consider the defence because of the judge’s interventions. The appellate court rejected the first claim, noting the jury had been properly directed on Robinson’s testimony and inconsistencies, including a prior statement where she claimed not to know the shooter.

However, the appeal succeeded on the second ground. The court found that Chief Justice Sykes’ questioning went far beyond clarification.

During Tennant’s testimony, Sykes repeatedly asked why she had not gone to the police, telling her, “I know you like to talk a lot, but listen to the question. You are an intelligent woman.”

With McIntosh, he questioned why she had not approached Stephenson or his co-accused to offer support, focusing on her actions rather than clarifying her evidence.

“Unfortunately, the robust questioning … could have severely undermined McIntosh’s credibility and ought not to have been embarked upon in the circumstances,” the Court of Appeal said. “The learned Chief Justice did not merely comment upon McIntosh’s evidence. He descended, quite extensively, into the arena to elicit evidence that ought to have been left to the prosecution”.

The appellate judges said these interventions “invite the jury to disbelieve the evidence for the defence … in such strong terms that it cannot be cured by the standard direction that the facts are for the jury”.

Stephenson’s conviction was quashed, with the court ruling he had been denied a fair trial.

The court then considered a retrial. While both prosecution and defence initially supported it, further submissions raised concerns about delay, cost, witness availability, and potential prejudice. The earliest retrial date was April 13, 2026 – over a decade after the killing – and key witnesses had not yet been located.

ORDEAL FACED BY ACCUSED

The judges cited several principles, including the seriousness of the offence, the strength of the prosecution’s case, the ordeal faced by the accused, and the constitutional right to a trial within a reasonable time. They concluded that a retrial would be prejudicial to Stephenson, who had already served seven years, and would not serve justice.

This is the second recent judgment of the Court of Appeal in which justices of Jamaica’s second-highest court have emphasised limits on judicial intervention. In November, the same panel overturned a rape conviction, criticising the trial judge for proceeding despite the accused’s lawyer being unavailable, which the court said caused a “miscarriage of justice”.

Stephenson was represented on appeal by attorney Cecil J. Mitchell, while the prosecution was led by Sophia Rowe and Sean Nelson. The appeal was heard on May 13, 2024.

editorial@gleanerjm.com