Keniel Ingham was wrongly convicted of killing Jermaine Red Pitcher, a top Jamaican Q.C. argued in Appeal Court yesterday.

Howard Hamilton, Q.C. attempting to persuade the Appeal Court judges to allow the appeal said that Assistance Justice Archibald Warner did not give a balance summation to the jury at the end of the manslaughter trial last October and that an adjournment should have been permitted to allow an expert witness to testify for the defence.

He said that some of the evidence offered by forensic pathologist Dr. John Obanfunwa should not have been admitted because it was based on a doctor's hospital notes and was hearsay.

Mr. Hamilton also argued that the trial judge misconstrued Ingham's defence in his summation.

"When you start to accumulate all the complaints, it is my respectful submission that the appellant did not get a fair trial."

Ingham, 29, of Rockland's Estate, Warwick, was convicted of killing Mr. Pitcher in the course of a bloody fight outside Champion's night club on February 27, 2000.

Two other men - Ryan (Tiger) Ball and Jamal (Knolly) Robinson - pleaded guilty to manslaughter charges and were sentenced to 10 years.

Ingham who maintained a not guilty plea, is appealing the conviction and the12 year sentence handed down.

During the trial, Ingham had testified that after being hit by Mr. Pitcher with a weapon consisting of a piece of knotted rope with a chunk of metal attached to the end, he had held Mr. Pitcher in a bear hug while "stunned and dazed", but had no idea that his friend Ryan Ball had a knife or that Ball was going to use it on Mr. Pitcher.

The prosecution's case that he had held Mr. Pitcher down while Ball stabbed him to death was accepted by the jury who found Ingham had acted together with Ball.

Mr. Hamilton argued that Ingham's testimony of the injury to his face was critical but had not surfaced in Dr. Obafunwa's report and it was not given the proper weight in the trial summation. Nor was there any mention of facial injuries in the hospital notes used by Dr. Obafunwa.

The lawyer acknowledged that Ingham's lawyer at the time may have been too inexperienced to realise that she should have tried to prove the injuries to the face did in fact occur.

The judges agreed to Mr. Hamilton's request that they send for a photograph of Ingham taken by the prison authorities which would show the extent of his facial injuries.

"This is a case which requires very careful examination by the court," he said.

"The evidence of the accused that he held the deceased in a bear hug was not inconsistent with the Crown's theory that, by doing so, he facilitated infliction of injuries by the co-accused, Ball. But neither was it inconsistent with the appellant's allegation that he was merely preventing the deceased from hitting him again."

He added witness testimony that Ball went to his car to get a knife also supported Ingham's contention that he was not acting in concert with Ball.

"Nowhere in the summation does the learned trial judge point out these alternative interpretations to the jury," Mr. Hamilton said.

He said Ingham's defence was not self defense, as the judge indicated in his summation, but "non participation in a joint enterprise".

Mr. Hamilton also argued that the judge wrongly used the word "confession" in his summation.

"A confession is an admission of guilt," he said.

He said an expert witness, a foreign pathologist named Dr. Hill, had disagreed "violently" with some aspects of a report by forensic pathologist Dr. John Obanfunwa, which was presented at the trial.

"When you describe as superficial a wound that goes straight through the body and comes out of the buttocks, you have to wonder as to his opinion," Mr. Hamilton said.

He said the pathologist would also have testified that other weapons may have been used during the fight that ended in Pitcher's death because while he sustained serious injuries, Ingham's DNA was not discovered on the knife used to stab Mr. Pitcher.

"If there is some evidence that shows there could have been another knife, the jury should know," Mr. Hamilton said.

But the defence team's pathologist arrived to give testimony only to discover the trial had been aborted on October 9.

The start of a new trial was delayed by a freak storm, an adjournment was requested but refused and when the trial restarted, Dr. Hill had already left the Island.

Mr. Hamilton argued that the trial judge, who was keen to end the trial by October 12 because two jurors had to be absent, wrongfully rejected a request for an adjournment so that the jury could hear the expert's testimony and the jury should have been allowed to hear an alternative version of the circumstances surrounding Mr. Pitcher's death.

Under questioning from the three-man panel of judges, Mr. Hamilton admitted that he was "hard pressed" to show the relevance of the pathologist's testimony. But he insisted that there was a strong "sense of grievance".

"The feeling of grievance is strong because the witness was there. The witness is not a figment of the imagination - the witness came."

President of the Appeals court said : "It appears he (the trial judge) is rushing the trial to accommodate jurors. When it comes to the accused, it doesn't matter."

Appearing for the prosecution were Juan Wolffe and Graveney Bannister. Mr. Wolffe argued that the defence used Dr. Obafunwa's testimony to make their own case.

"The defence cannot have their cake and eat it too," said Mr. Wolffe. And he said that the defence did not object to the testimony during the trial. "To turn around and say it shouldn't be admitted is tying to have your cake and eat it too."

He added that the judge could not have known whether the foreign pathologist's evidence was relevant and it was unclear whether a formal application to adjourn the trial had been made.

The hearing continues today.