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The case against Justis Smith should have gone to
the jury because there is circumstantial evidence placing him at the scene
of Rebecca Middleton's murder, the three-man Court of Appeal heard
yesterday. This was one of
the arguments presented by Acting Attorney General William Pearce on the
first day of the Crown's appeal against the acquittal of Justis Smith.
The Crown is seeking to have the court
overturn the decision by Puisne Judge Vincent Meerabux, directing the jury
last December 15 to bring in a not guilty verdict in the murder of the
Canadian tourist.
If Mr. Pearce is successful in his appeal,
Smith could go back to court to once again face murder charges in connection
with the July 3, 1996 death of the vacationing 17-year-old.
Mr. Pearce said the jury should have been
given the opportunity to determine whether Smith was guilty or innocent.
Mr. Pearce also argued Judge Meerabux
failed to look at all of the evidence presented during Smith's trial.
"He failed to look at all of the
circumstantial evidence that tended to show Smith and Mundy were at the
scene... You look at all of the time lines... the opportunity... was
sufficient to place Smith with Mundy at the scene," said Mr. Pearce. "Justis
Smith placed himself with Mundy that evening at the time the murder
occurred," and Mundy was proven to be at the scene through the use of DNA
evidence.
"Put those two pieces of evidence together
[Smith's admission and Mundy's DNA found at the scene] and the jury can draw
the inference."
Mr. Pearce said there are two keys to the
Crown's case against Smith circumstantial evidence which places Smith with
Kirk Mundy, 23, and Miss Middleton at the scene of the crime and expert
testimony, by two different witnesses, which show two people were involved
in the commission of the crime.
"At least two people were involved in the
stabbing of Miss Middleton and the evidence to show that the body was also
carried to the middle of the road is also evidence that can be used to
support {the two-person theory}," explained Mr. Pearce.
Mr. Pearce is also arguing that Judge
Meerabux mistakenly considered the deal made earlier in the investigation
which resulted in Mundy receiving a five-year sentence for pleading guilty
to being an accessory to murder after the fact.
Mr. Pearce explained that in Judge
Meerabux's ruling there was a primary and secondary party involved in the
murder of Miss Middleton. Since Mundy pleaded guilty to being an accessory
after the fact, that leaves Smith as the primary participant. Determining
who the primary or secondary party was in this crime, Mr. Pearce said, was
an "irrelevant consideration."
"The law is, as long as you can establish
who the two people are in concert, you don't have to establish who did the
stabbing," explained Mr. Pearce.
"Because Mundy has pleaded guilty to
accessory after the fact, then Mundy can't be the primary party...
Therefore, we have to show Smith did the stabbing or else we fail," added
Mr. Pearce. "It was an error in law to consider that fact."
Mr. Pearce noted any deals Mundy may have
made with the Attorney General's office should not have been taken into
consideration when determining the evidence put forward against Smith.
"All evidence, even if it is conflicting,
should go before the jury," he said.
"Although Mundy was at the scene of the
crime, he could not be found guilty of the commission of the crime."
Miss Middleton was found lying in the
middle of Ferry Reach Road in the early morning hours of July 3,1996. Miss
Middleton was on the island visiting her friend Jasmin Meens. The two
teenagers went out that evening and when taxis failed to pick them up the
two girls accepted cycle rides from Mundy and Smith as well as Dean
Lottimore. Miss Meens was driven home by Mr. Lottimore and arrived home
safely.
Mr. Pearce is being assisted by Crown
Counsel Peter Eccles while British QC John Perry is representing Justis
Smith.
The appeal is expected to last about a
week. |
