Fresh evidence leads to conviction overturn

The rare acceptance of fresh evidence by the Court of Appeal yesterday resulted in two murder convicts escaping the gallows.

They are Samuel Lindsay, 45, otherwise called "Sammy Dread" and Henry McKoy, 28, auto mechanic, both of Goldsmith Villa, August Town, St. Andrew.

Fresh evidence was given on Wednesday on behalf of the two men who were seeking to be freed based on alleged comments the sole eyewitness made after a man and a pregnant woman were killed five years ago at 40 August Town Road, Kingston 7.

Cecil Markland, otherwise called "Duck", who was the sole eyewitness, was killed sometime after he testified at the men's trial. The witness, who gave fresh evidence, said Markland told him that it was not Sammy Dread and McKoy who did the killing and named the persons who did it. He said he was afraid to tell anyone what Markland said because he was afraid of what Markland and his friends might do to him. He said everyone in the community knew that Markland and Sammy Dread were at war.

The Court of Appeal comprising Mr. Justice Forte, Mr. Justice Patterson and Mr. Justice Bingham heard the appeal and found that the evidence was credible. The court will give its reasons in writing at a later date .

The fresh evidence came to light after the men had lost their appeal. However, in their appeal to the United Kingdom Privy Council, their lawyers, Ian Wilkinson and Garth McBean, submitted the affidavits relating to the fresh evidence. The Privy Council reviewed the matter and sent back the case for the Court of Appeal to determine whether the evidence was credible.

It was the second time within two years that the United Kingdom Privy Council had remitted cases to the Court of Appeal to hear fresh evidence. The other case was that of Brian Bernal, son of Jamaica's Ambassador to Washington. The court threw out his fresh evidence and he had to serve his 12-month prison sentence for possession of ganja, dealing in ganja and exporting ganja.

Door kicked off

Evidence was given at the in camera trial in the Home Circuit Court in January 1996 that about 1:00 a.m. on June 10, 1993, Suzette Brown and Richard Forbes were sleeping in separate rooms at 40 August Town Road when Lindsay and McKoy kicked off the door, entered the house and shot them dead. Suzette was Markland's girlfriend.

The jury returned guilty verdicts and the men were sentenced to hang. They appealed and the Court of Appeal dismissed their appeal.

After their appeal was dismissed, an attorney-at-law went to the prison where the witness was to get information from him as to the whereabouts of one of his friends who could help the men's case. It was then that the witness revealed what Markland had told him shortly after the incident.

The attorneys representing the two men applied to the Court of Appeal on Monday for the men to be brought to court to hear the evidence and the court granted the order. Lindsay and McKoy were in court on Tuesday when the fresh evidence was given.

au:gayle dt:11/20/1998 sc:jg