Court of Appeal frees man of murder after 'substantial miscarriage of justice'

The Court of Appeal has freed Andre Nelson who was convicted in June 2014 of murder, declaring that some comments from the trial judge provoked "a substantial miscarriage of justice".

Nelson was sentenced on July 14, 2014 to life imprisonment at hard labour and ordered to serve 20 years' imprisonment before he could be eligible for parole for the murder committed in Bull Bay, St Andrew. 

Witnesses had testified that Nelson and other men approached the victim and Nelson shot him in the chest. 

When Nelson was apprehended by the police, he gave his name as 'Mario Bennett'.

But he later admitted to the police that he was Andre Nelson, also called 'Ants'.

He denied committing the murder. 

Nelson applied for leave to appeal his conviction and sentence but the transcript of the proceedings was not received by the Court of Appeal until August 21, 2020.

On August 15, 2020, an appellate judge granted him leave to appeal and indicated that although the presiding judge Bertram Morrison gave adequate directions in most instances to the jury, he made some comments that were “unfortunate.”

Attorney-at-law Emily Shields represented Nelson at the appeal hearing between January and February this year.

Shields submitted that upon an examination of the transcript of the trial, the prosecution was clearly relying on lies told by Nelson during the police interview regarding his correct name to buttress other evidence of his guilt for the offence of murder.

She highlighted that the judge told the jury that Nelson's motive for his lie must have been a realisation of guilt and fear of the truth.

She also argued that the judge did not put to the jury Nelson's reason for the lie and at points appeared to pour scorn on his statements.

“The learned judge used a forbidden reasoning which cuts to the core of the integrity of the conviction, rendering it unsafe as having come from a substantial miscarriage of justice,” Shields argued. 

But, the prosecution represented by Crown Counsel Malike Kellier and Dwayne Green submitted that the judge gave detailed and adequate directions to the jury on how they should treat the lies.

They said it was after that the judge commented on the issue of whether Nelson had lied to the police. 

The Court of Appeal said the judge's comments to the jury were problematic.

“Importantly, the learned trial judge in the case at bar commented that the proven lies must have been a realisation of guilt. The lie would have been a very important factor in the jury's assessment of the evidence, as the only evidence against the appellant rested on the identification evidence of the eye witnesses. The lie touched and concerned the appellant's identity."

“The effect of the comments of the learned trial judge is that they took away from the jury an important assessment of the facts that would form part of their ultimate determination as to whether the appellant was guilty or not guilty. This was a substantial miscarriage of justice.”

The court, comprising Justices Jennifer Straw, Nicole Foster-Pusey and Viviene Harris, said while they agreed with the position of the Crown that the evidence of identification was very strong, Nelson was deprived of a fair trial due to the nature and impact of the comments made by the judge concerning the lie.

The judges said it would be inappropriate to uphold the conviction after such a serious error.

On the issue of a retrial, the court ruled that the Crown had indicated that a retrial would not be appropriate because on reviewing its file, the statements of the two eyewitnesses cannot be found.

The depositions taken at the Kingston and St Andrew Parish Court and sent to the criminal registry at the Home Circuit Court cannot be found.

It was also noted that the lawyer who represented Nelson at his trial cannot locate the statements that were disclosed to him.

The court said the Crown had taken the position that having been left with only the transcript of the trial, that would not be enough to safeguard Nelson's right to a fair trial.

“In all the circumstances, since there can be no retrial, and there has been a substantial miscarriage of justice, the conviction must be quashed,” the court ruled.

- Barbara Gayle

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