Defence lawyer Mark Pettingill yesterday told the Court of Appeal Chief Justice Austin Ward misdirected the jury in the Randy Burgess murder trial setting a "negative tone'' throughout.

While Mr. Pettingill did not read aloud the offending comment, the Justices ordered an adjournment yesterday morning to get a response to the allegation.

Mr. Justice Ward was interrupted minutes later during another summation and jury direction -- this time for a man accused of dishonesty offences.

The Chief Justice vigorously shook his head when reading the affidavit and paused after the Court of Appeal clerk left the bench and held his face in his hands before resuming.

Burgess was convicted in March of the manslaughter knifing death of love rival Dean Young in October 1999.

Mr. Pettingill said: "It sets the tone of the whole trial. It was said in open court before the jury was selected. It was an opening gambit and then the jury was picked.'' Allowing Director of Public Prosecutions Khamisi Tokunbo to bait Burgess into challenging the character of Mr. Young "clearly goes to the issue of the appeal'' Mr. Pettingill said.

"The loss of the shield (from unfair examination of an accused person's character) came as a result of the line of questioning during cross examination,'' he added. The question of whether Burgess used reasonable force against Mr. Young is the central ground of the appeal, with Mr. Justice Ward allegedly failing to direct the jury properly on the issue of self defence.

"There is the question of reasonable apprehension for the defendant of death or grievous bodily harm from the victim,'' he explained. "It's a beating from a man of that size on Mr. Burgess.

"A very grave error was made with regard to the emphasis with regard to the defendant whether his use of force was reasonable enough,'' he added. "The defendant had an apprehension. He did retreat and he was boxed in.'' Other grounds of appeal put to the panel include the contention that colour photographs of the victim may have had a prejudicial effect on the jury and the admission of evidence that Burgess assaulted his ex-girlfriend, Trina Todd.

Mr. Pettingill said: "It is one of those narrow points, but in the interests of consistency all of them should have been allowed in as black and white not some of them.

"It has the effect of inflaming the passions of the jury -- using black and white photographs lessens the impact on the layman who doesn't often see such things,'' he added.

Mr. Pettingill said while he raised a general objection during the trial over Ms Todd's testimony about the assault -- which Burgess did not have to face charges for -- including medical evidence was closer to being "more prejudicial than probative towards a charge of murder''.

"It would have had a prejudicial effect on a jury,'' he added. "People will feel two different ways about a fight between two men and a fight between a man and a woman.

"I'm saying he went too far in accepting the medical evidence. It had no probative value at all. It, too, could inflame the passions.'' Mr. Pettingill said the Chief Justice also erred in allowing King Edward VII Memorial Hospital forensic pathologist John Obafunwa to give what he called "expert'' evidence on the patterns of blood splatter at the scene.

"On no less than three occasions he said `I'm not an expert','' Mr.

Pettingill explained. "Again this appeal does not turn on it but it is part of the cumulative effect.'' Crown Counsel Vinette Graham Allen defended the Chief Justice's decisions, reading out the judges detailed reasons for each one in turn.

Mrs. Graham Allen explained decisions by trial judges should not be "disturbed'' unless they could be shown that they were wrong in law or that he failed to appreciate the effect of allowing in the contentious issue.

She said Burgess' credibility was at stake with regard to the issue of the medical records and the judge in each case gave strong warnings about jurors considering anything other than the facts. Particularly, Mr. Justice Ward warned about making a "quantum leaps'' on whether the assaults showed a propensity towards violence or even murder.

And she said Burgess' own evidence showed he was under attack and there was no misdirection on self defence.

Randy Burgess MURDER MUR