Derek Achong

A 51-year-old man from El Do­ra­do, sen­tenced to death for mur­der­ing a home­less man while high on co­caine over 14 years ago, has won his ap­peal over his con­vic­tion.

De­liv­er­ing an oral judge­ment in Vish­nu Be­har­ry’s ap­peal dur­ing a vir­tu­al hear­ing, yes­ter­day morn­ing, Ap­pel­late Judges Al­ice Yorke-Soo Hon, Gillian Lucky and Mal­colm Holdip ruled that the judge, who presided over his tri­al in 2016, made sev­er­al er­rors in sum­ming the case up to the ju­ry, which ren­dered his con­vic­tion un­safe.

Based on their de­ci­sion, the ap­peal pan­el or­dered that his con­vic­tion for mur­der be sub­sti­tut­ed to the less­er of­fence of manslaugh­ter by in­tox­i­ca­tion.

The ap­peal pan­el then sen­tenced him to four years and nine months in prison.

Jus­tice Lucky, who dealt with the sen­tenc­ing, be­gan with a start­ing point of 20 years but de­duct­ed 4 years based on the fact that Be­har­ry had a clean crim­i­nal record when charged, his ex­em­plary dis­ci­pli­nary record in prison and be­cause he had ex­pressed a de­sire to plead guilty to manslaugh­ter be­fore be­ing tried and con­vict­ed of mur­der.

The time Be­har­ry spent in prison be­fore and af­ter his con­vic­tion was al­so de­duct­ed from his fi­nal sen­tence.

In pass­ing the sen­tence, Lucky warned Be­har­ry that the court’s de­ci­sion in his case was not to be tak­en like­ly.

“It does not de­tract from the fact that you killed a man...In sen­tenc­ing, the sanc­ti­ty of life must al­ways be re­mem­bered,” Lucky said.

Lucky al­so ad­vised Be­har­ry to make use of prison pro­grammes es­pe­cial­ly drug re­ha­bil­i­ta­tion dur­ing his re­main­ing time in prison.

“Be­ing free does not mean that you go back to the way you lived be­fore,” Lucky said.

Be­har­ry’s lawyer Sophia Chote, SC, not­ed that her client was a crick­et fa­nat­ic and sug­gest­ed that he could help coach younger pris­on­ers.

Spe­cial pros­e­cu­tor Tra­vers Sinanan, who ad­mit­ted he had a sim­i­lar pas­sion for the sport, sug­gest­ed that Be­har­ry write to lo­cal crick­et clubs to see if they can as­sist him in ob­tain­ing his coach­ing badges while in prison.

Be­har­ry, of Cassie Street in El Do­ra­do was charged with mur­der­ing Samuel Jor­don on April 9, 2007, at To­caragua Road in Cau­ra.

Res­i­dent in the com­mu­ni­ty claimed they awoke to hear two men, lat­er iden­ti­fied as Be­har­ry and Jor­don, ar­gu­ing near a car that was parked in the area.

One res­i­dent ap­proached the men and Be­har­ry, who was armed with a hatch­et, who al­leged­ly said: “This man is a thief and rapist and he needs to be pun­ished.”

The res­i­dent sug­gest­ed that Be­har­ry call the po­lice to deal with the sit­u­a­tion and re­turned in­side his house.

When the res­i­dent re­turned out­side, the car was gone and Jor­don’s body, who bore mul­ti­ple chop wounds, was found at the side of the road.

When po­lice went to Be­har­ry’s home, he de­nied any wrong­do­ing and claimed he was lim­ing in a bar for the en­tire night.

When po­lice found blood on his clothes, he claimed that he was beat­en by a group of men at the bar. He al­so sug­gest­ed that blood that was found in the back­seat of the car pos­si­bly came from some­one who he gave a drop.

Pressed fur­ther, Be­har­ry ad­mit­ted that af­ter he left the bar, he picked up Jor­don and went to the lo­ca­tion in Cau­ra to con­sume co­caine.

He claimed that af­ter he and Jor­don took the drugs in the car, Jor­don tried to rob him and he de­fend­ed him­self with the hatch­et he kept be­low his seat.

He claimed that af­ter chop­ping Jor­don once, they both got out of the car and Jor­don at­tacked him with a rock that he found at the side of the road.

He chopped Jor­don sev­er­al times, threw the hatch­et in a patch of bush­es and left.

Be­har­ry was ini­tial­ly charged with mur­der but he was com­mit­ted to stand tri­al for manslaugh­ter at the end of his pre­lim­i­nary in­quiry. He was grant­ed bail but three years lat­er he was again re­mand­ed af­ter he was in­dict­ed for the high­er of­fence.

In the ap­peal, Be­har­ry’s lawyers claimed that the tri­al judge made note of him claim­ing an al­i­bi, when he had re­lied on the state­ment in which he ad­mit­ted to at­tack­ing Jor­don in self-de­fence while in­tox­i­cat­ed.

They not­ed that his state­ment could not be con­sid­ered to be an al­i­bi as he nev­er said which night he was speak­ing about.

The judges agreed and al­so up­held their com­plaint over the fail­ure of the judge to prop­er­ly ex­plain that he could have had the in­ten­tion to kill and still re­ly on the de­fence of provo­ca­tion.

They al­so not­ed that in the route to ver­dict doc­u­ment giv­en to ju­rors be­fore they de­lib­er­at­ed, the judge failed to iden­ti­fy that they could have con­vict­ed him of manslaugh­ter by way of in­tox­i­ca­tion.

Be­har­ry was al­so rep­re­sent­ed by Pe­ter Carter.