Jurors query judge in Sinclair murder trial

Jurors deciding the fate of a Manitoba couple accused of murdering a five-year-old girl have posed a question to the judge.
The body of Phoenix Sinclair, who is seen here in an undated photo, was discovered in 2006 on the Fisher River reserve.
Jurors deciding the fate of a Manitoba couple accused of murdering a five-year-old girl have posed a question to the judge.

The jury, deliberating since Tuesday, said they wanted to know how far the Crown had to go in proving a defendant was in a murderous state of mind when five-year-old Phoenix Sinclair was killed in 2005.

They asked whether the Crown has to prove a defendant has a murderous state of mind while both performing an unlawful act and while failing to perform an action to prevent a crime.

Court of Queen's Bench Justice Karen Simonsen told the jury the Crown only has to prove one or the other, not both, and the jurors resumed their deliberations.

The 10-woman, two-man jury is mulling the fate of Samantha Kematch and Karl McKay, who pleaded not guilty to first-degree murder in the death of Kematch's five-year-old daughter, Phoenix.

The child was a ward of Child and Family Services for much of her life until Kematch regained custody of her just months before her death in June 2005.

During those months, Phoenix was subjected to a horrifying battery of abuse.

Kematch and Karl McKay, her common-law husband, face charges of first-degree murder after Phoenix was left to die on a cold basement floor in 2005 following months of abuse. Her body was found wrapped in plastic in a shallow grave near the Fisher River garbage dump in March 2006.

Both have pleaded not guilty to separate charges of first-degree murder.

The couple is also accused of trying to pass off another child as Phoenix to convince welfare investigators and the RCMP that their daughter was still with the family — partly in order to apply for benefits in the little girl's name.

Shown is a copy of a letter Samantha Kematch wrote to her deceased daughter Phoenix Sinclair after she was arrested in her child's death. ((CBC))

During the trial, jurors heard that Kematch and McKay routinely beat the girl with their fists, feet, or a metal bar, forced her to eat her own vomit, and confined her to a cold barren basement.

When Phoenix finally succumbed to the abuse in June 2005, the couple buried her in an unmarked grave.

Kematch and McKay pointed their fingers at each other as having inflicted the fatal injuries.

During the trial, a letter Kematch wrote to her daughter after her death was read to the court by RCMP Cpl. Tara Clelland-Hall, who interviewed Kematch following her arrest.

"I wanted to tell you that I think about you every day," Kematch wrote. "I'm so sorry this happened to you. I know lots of people are hurt by this and in extreme pain."

With files from the Canadian Press