A boat driver who admitted causing the death of a woman was not convicted of the offence because of a Supreme Court error.

Andrew Lake admitted causing the death of New Zealander Mary McKee by reckless driving after passing over her small inflatable boat on a motorboat in June last year.

However, the Court of Appeal heard yesterday that the charge was inadvertently “acquitted or dismissed” by the Supreme Court when he was found not guilty of the more serious offence of manslaughter three months ago.

Lake, 27, was spared jail in August when he was given an eight-month suspended sentence for causing Mrs McKee’s death by reckless driving.

He was also handed a six-month suspended sentence for injuring Arthur McKee, Mrs McKee’s husband, and yacht skipper Charlie Watson.

During the trial, Lake said he was unable to see the smaller boat because it had no lights.

He admitted that he was driving recklessly and over the speed limit, but denied allegations that he was travelling at more than 30 knots.

Cindy Clarke, Deputy Director of Public Prosecutions, urged the court yesterday to make an order reversing the accidental acquittal, saying that otherwise there would be no punishment for the death of Mrs McKee.

Jerome Lynch, who represented Lake during the trial, told the Appeals Panel that he unintentionally misled Puisne Judge Charles-Etta Simmons by telling her she did not need to put the death by reckless driving charge to the jury as he had already pleaded guilty.

The Crown did not accept his plea and, because the charge was not put to the jury, Lake was not convicted of the offence.

Mr Lynch said: “I clearly did indicate to the court not to leave it to the jury.

“I believe it was my suggestion to her at one point that, the respondent having pleaded guilty, the charge was not one that the jury needed to consider.

“The reality is the judge was certainly misled into doing what she did.”

Mr Lynch added: “It’s not part of my submissions, and it never has been, that this respondent should escape the liability for that which he has accepted responsibility for from the outset.”

He suggested that the courts could return the matter to the Supreme Court, but argued that it would be better not to make any orders because the conviction would mean very little to Lake’s overall sentence.

Mr Lynch argued the court needed to be careful not to set a dangerous precedent by reversing an acquittal to a conviction, even with Lake’s admissions.

However, Ms Clarke said Bermuda law empowers the Court of Appeal to substitute an acquittal with a conviction if there was an error in law.

She argued the Court should take that path and record a conviction against Lake as the acquittal was legally wrong, but agreed that the Court did have the power to remit the charge back to the Supreme Court.

The Court of Appeal will release its decision next week.

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