Child killer Damon DeRoza has escaped the hangman's noose after the Court of Appeal quashed his conviction for the murder of his five-year-old daughter.

And the Judge at his original trial, Chief Justice Austin Ward, was also criticised for his conduct during the trial.

DeRoza, 21, has spent the last six months on death row after he was convicted of killing Lynae Brown by an 11-to-one majority verdict at his trial in December.

But yesterday the Court of Appeal threw out the conviction on the grounds that the trial judge failed to direct the jury that they could return a verdict of manslaughter if they accepted that DeRoza was suffering from diminished responsibility at the time of the killing.

DeRoza has now been found guilty by the Court of Appeal of the lesser charge of manslaughter. He was given a life sentence but could apply for parole when he is deemed well enough to return to society.

"That could be two, five, ten or 20 years,'' Court President Sir James Astwood told an emotionless DeRoza.

At the original trial it was revealed how DeRoza had snatched his daughter from her grandmother, taken her to the shoreline near Mizzentop, Warwick, and thrown her into the sea.

He then stood on the child's neck until she was dead.

But defence attorney Mark Pettingill called an expert witness who testified that DeRoza was mentally unbalanced, evidence that the Crown failed to challenge.

Reading out the judgment, Judge Edward Zacca said: "The facts are not in dispute.

"The defence was one of diminished responsibility. The only evidence called on behalf of the appellant was Dr. Crawford who stated that the appellant was suffering from diminished responsibility at the time of the killing.

"The doctor was cross examined by counsel for the Crown but no rebuttal evidence was called by the prosecution.

"It is conceded that nowhere in the summing up does the judge direct the jury that a defence of diminished responsibility may succeed even where they find that the killing was premeditated.'' Quoting from a Judge in a murder trial in Britain in the 1950s Judge Zacca said: "If the doctor's evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be a true verdict in accordance with the evidence.

"We are of the opinion that there was a non-direction on the part of the trial judge. He should have clearly directed the jury that a verdict of manslaughter on the basis of diminished responsibility was open to them, even if they accepted that there was premeditation.

"We are unable to say whether the outcome of the trial would have been the same had this direction been given to the jury. The non-direction may have deprived the appellant of a verdict of manslaughter.

"In the circumstances the appeal is allowed on this ground.'' After the judgment DeRoza's attorney, Mark Pettingill, who supports capital punishment, said: "I think the original verdict was an emotional one and I was upset by it.

"But in this particular type of case it's difficult for the jury to assimilate between rigid legal issues. I am pleased that the Court of Appeal has made this decision but it doesn't take away from the tragedy of this case.'' Lynae Brown