A High Court Judge has rejected a move to have one of two men, accused of murdering six-year-old Sean Luke as teenagers, freed due to insufficient evidence against him.

Delivering an oral ruling during a virtual hearing, yesterday, Justice Lisa Ramsumair-Hinds overruled a no-case submission brought by attorneys representing Akeel Mitchell. After delivering her decision, Mitchell’s attorney Randall Raphael was called upon to indicate whether his client would testify in his defence or call defence witnesses.

Raphael reiterated that his client elected to remain silent but said that he would call pathologist Professor Hubert Daisley, who performed a second autopsy on Luke’s body, as a witness.

While State pathologist Dr Eslyn McDonad-Burris ruled that Luke died of internal injuries from being sodomized with a sugarcane stalk, Daisley allegedly ruled that he died of strangulation and that the internal injuries occurred after death.

Mitchell’s co-accused Richard Chatoo indicated that he would take the witness stand to testify in his defence and would not call any witnesses.

In the no-case submission, Mitchell’s lead attorney Mario Merritt claimed that all the evidence presented by prosecutors since the judge-alone trial began in early April was merely circumstantial and speculative. He noted that prosecutors were relying on the evidence of two teenagers from Luke’s community, who claimed that they saw Mitchell, his co-accused Richard Chatoo and Luke divert into an abandoned sugarcane field, which bounds their community, while they were all going fishing.

Merritt noted that there was no direct evidence of what transpired in the sugarcane field up until Luke’s decomposing body was found there, two days later. He also reiterated that there were numerous inconsistencies in the duo’s evidence with both admitting that they initially lied to police when questioned over Luke’s disappearance. While Merritt accepted that Mitchell’s DNA was linked to semen found on Luke’s underwear, he noted that he was not linked to DNA profiles found on anal swabs taken during Luke’s autopsy and on the sugarcane stalk that was used to sodomize him.

In her decision, Justice Ramsumair-Hinds disagreed with Merritt over whether the circumstantial evidence was enough to possibly arrive at a guilty verdict for Mitchell.

She also rejected Merritt’s claim that the State had to prove that Mitchell and Chatoo, who are accused of joint enterprise, conspired together to murder Luke. She agreed with prosecutors that they did not have to prove who was the principal or accessory in the crime as there was evidence of one being encouraged or assisted by the other. Lastly, Justice Ramsumair-Hinds had to consider a legal principle, which states that children between the ages of seven and 14 are presumed to not be capable of facing criminal charges unless it could be proven that they knew their actions were seriously wrong. Justice Ramsumair-Hinds noted that while prosecutors had to prove the mental capacity of the accused, the level of proof required to rebut the presumption was less as Mitchell was a few weeks short of his fourteenth birthday when Luke was killed.

She noted that the evidence of premeditation and of alleged attempts to conceal Luke’s body also rebutted the principle in Mitchell’s case.

The no-case submission was the latest procedural application brought by Mitchell’s attorneys in an effort to have him freed.

Before the start of the trial, Justice Ramsumair-Hinds dismissed two similar applications, one over insufficient evidence and another over a former prosecutor in the case briefly representing him before she joined the Office of the Director of Public Prosecutions (DPP).

Luke went missing on the evening of March 26, 2006 and his body was found two days later in an abandoned sugarcane field next to his community.

Daisley is expected to testify when the trial resumes tomorrow, with Chatoo scheduled to take the witness stand on Friday.