A day care operator convicted of abusing a child in her care will return to Magistrates? Court tomorrow for mention after winning her appeal for a retrial in Supreme Court yesterday.

In March mother-of-two Jacqueline Fubler was sentenced to a year imprisonment for causing grievous bodily harm to Stephen Ebbin.

However, yesterday Puisne Judge Ian Kawaley quashed Fubler?s conviction and ordered a retrial to take place before another magistrate.

The case, with its ?tortuous background? according to Mr. Kawaley, has dragged through the courts since 2001.

Referring to a timeline of events in Mr. Kawaley?s written statement, the allegeed offence occurred between July 1 and July 7, 2001 when Stephen Ebbin, then a year old, spent his days in the care of Fubler, who operated Noah?s Ark day-care centre in Warwick.

The court proceedings commenced on October 18, 2002 when Fubler pleaded not guilty to the charges in Magistrates? Court.

On February 2003, the first trial was adjourned to May 14, 2003.

However, two days before this date, the defence applied for and obtained an adjournment until September 17, 2003.

On August 8, 2003, the Defence was granted a further adjournment and the matter was listed for September 5, 2003, on or about which date Hurricane Fabian hit Bermuda.

On October 31, 2003, the matter was listed for trial on March 22, 2004.

On March 22, 2004 ? the fourth trial date set nearly five months after two previous adjournments had been granted to the defence ? the trial finally got underway. Two days later Fubler changed her plea to one of guilty and was remanded in custody and committed for sentence to the Supreme Court.

However on June 1, 2004, Fubler reversed her plea to not guilty and the case was sent back to Magistrates? Court by the Chief Justice for the trial to continue.

It resumed with Mark Pettingill acting on Fubler?s behalf on September 7, 2004.

Eight days later Fubler was found guilty and remanded into custody until sentencing in Supreme Court on March 18 this year.

On that date, she was sentenced to a year in prison and a further year?s probation, but by this time Fubler had already been in custody for 12 months and was subsequently released a week later. The maximum sentence for the offence is five years imprisonment.

Fubler?s current lawyer Elizabeth Christopher, in appealing the conviction, questioned the expertise of a Crown witness who testified about the injuries to baby Ebbin.

Ms Christopher also argued Magistrate Tyrone Chin should have cross examined Dr. Alexander Barron on Fubler?s behalf as she was unrepresented at that stage of the long-running legal case.

Ms Christopher also claimed that the magistrate failed to take into account the fact that Fubler did not have sole care and control of Stephen Ebbin during the time that the injury was caused.

While her grounds for appeal were dismissed, Mr. Kawaley explaining that the appeal was allowed ?in part and dismissed in part?.

?There is obviously a strong public interest in ensuring that serious criminal offences, particularly involving violence against very small and extremely vulnerable children, should be prosecuted and that where sufficient evidence exists, offenders should be found guilty,? Mr. Kawaley said yesterday.

?But this factor is counterbalanced by the right of accused persons to be tried fairly, a right which is arguably most important in those cases where the clamouring of the victim?s family and the public at large for the retribution is likely to be loudest.?

He said the Court had to ensure that where serious charges which could be tried on indictment are tried summarily, fair hearing rights are not unduly comprised.

?In all the circumstances of the present case, I find that justice was not seen to be done in the appellant?s case, even though no substantial miscarriage of justice occurred.?

Mr. Kawaley said the Criminal Appeal Act confers on the Court a broad discretion to set aside a decision and order a retrial instead of quashing a summary decision altogether.

?I would accordingly quash the conviction and order a retrial before another Magistrate.?