The Caribbean Court of Justice (CCJ) today began hearing an appeal brought by two convicted Barbadian murderers, with defence attorney Andrew Pilgrim, QC, arguing before this country’s highest court for their death sentences to be thrown out.
Dwayne Omar Severin was earlier sentenced to death for November 30, 2009 killing of Virgil Barton near his home at Lucas Street, St Philip, while Jabari Sensimania Nervais was issued with the same sentence for the November 17, 2006 shooting death of former Perseverance Drive, Jackson, St Michael resident Jason Ricardo Burton.
Both men subsequently lost all their grounds for domestic appeal.
However, appearing before the Trinidad-based CCJ today, Pilgrim contended challenged the death sentence in both cases.
In Nervais’ case, he explained that there was no evidence to show that the fatal bullet came from his gun. “It is our position that in this case, the Crown had one of two ways of establishing the guilt of the appellant. Either that he shot the man, . . . the man died as a result of a shot that he fired, . . . or he was acting with persons who did that.
“In our view, those are the two vessels. They [the Crown] had to go one of those two routes. The Crown in their wisdom appeared to have chosen the route of saying, ‘he shot the man’. But it is manifestly clear from the record that that cannot be proved,” Pilgrim argued.
He also pointed out that reference was made to shots being fired and the Crown’s discovery of two different bullets at the scene.
Pilgrim further argued that this scenario presents a challenge to the Crown unless it could show that Nervais acted jointly with others, and that one of two other men charged with the murder was responsible for the crime.
At the same time, he said the trial judge appeared to be insistent that “the only way you can find this man guilty is if you have proof . . . that he shot the man”.
Calling it a “misstep”, the Queen’s Counsel said he felt it could have adversely affected his client or prejudiced the case against him.
Today, Principal Crown Counsel Anthony Blackman – in response to a question from one of the CCJ judges – admitted that there was no medical or ballistic evidence to link the defendant’s gun to Burton’s death.
However, Blackman said he was satisfied that Nervais’ “confession” that he was at the scene and fired a shot, was enough for the jury to make a conviction.
In response to Pilgrim’s submissions, he also argued that even though the trial judge had made a mistake on a point of corroboration of evidence during her summation, she later corrected it in the presence of the jury.
“It is our submission that the learned trial judge was made aware of the misstep and she sought to correct it for the jury. Of course, that error was brought to the attention of the judge late in the proceedings, but what was important, it was brought to the attention of the judge in the presence of the jury.
We are submitting that that was enough to bring it to the jury’s attention…and it was her intention to ensure that the accused received a fair trial and she did what she thought was reasonable [and] what was necessary at that time, to correct the error that she made,” the prosecutor said.
When asked by CCJ Chairman Sir Dennis Byron to tell the tribunal what kind of outcome he wanted in this case, Blackman suggested the court substituted a verdict of manslaughter since too much time had elapsed to opt for a retrial.
During the post-lunch session the court also considered Severin’s case, with Pilgrim contending that the informal process used to his client as Burton’s killer was flawed and therefore should be declared of no value.
But Blackman countered saying that there was other evidence apart from that of special circumstances which pointed to Severin’s guilt.
“It would certainly be very difficult for the accused man to explain, other than alleging that the police planted that weapon, how the very weapon used in this incident was at his home,” the Principal Crown Counsel contended.
“We have the witness who said he saw the accused . . . he knew him by sight . . . he knew him,” Blackman added.
The two sides will conclude their arguments tomorrow which will be followed by the CCJ’s ruling on the mandatory death sentence.