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Convicted couple seek new trials Add to ...

A Manitoba couple found guilty of murdering the woman's young daughter want new trials unless their convictions are reduced to manslaughter.

In separate briefs filed with the Manitoba Court of Appeal, Samantha Kematch and Karl McKay argue they were unfairly convicted of first-degree murder. They point out they denied during their trial that they confined five-year-old Phoenix Sinclair to a basement, where she died on the cold floor after the last of many beatings.

Under the Criminal Code, someone is deemed to have committed first-degree murder instead of second-degree murder or manslaughter if he or she forcibly confined the victim at the time of the slaying.

The verdict was "contrary to law and against the weight of evidence," reads a factum filed by Ms. Kematch's lawyer, Leonard Tailleur.

Ms. Kematch and Mr. McKay were sentenced last December to life in prison for the neglect and repeated beatings that killed Phoenix. The girl's stepbrothers testified she was often hit, choked, shot with a BB gun and forced to spend days and nights lying naked in the basement of the family's home on the Fisher River reserve north of Winnipeg.

T She was also forced to eat her own vomit.

Experts told court the girl had suffered repeated injuries over a long period, and had broken bones from her pelvis to her skull. She died after a beating in June of 2005, but her death went unnoticed until March of 2006.

The Crown successfully argued the killing qualified as first-degree murder because Phoenix was forcibly kept in the basement. Mr. McKay's lawyer argues that while the girl was sometimes told to stay in the basement, and occasionally penned in behind a washer, she was not physically restrained at the time of her death.

"The trial judge misapplied the law in concluding that forcible confinement ... could be made out by psychological constraint alone," reads the factum prepared by lawyer Mike Cook.

"There was no evidence of any physical confinement ... that could be causally and temporally linked to Phoenix's death. The trial judge should have directed an acquittal on first-degree murder."

Ms. Kematch and Mr. McKay, who was her live-in boyfriend, pointed the finger at each other for Phoenix's death both in court and in jailhouse interviews. They also argued the trial judge was wrong not to grant them separate trials.

The death of Phoenix sparked a review of Manitoba's child welfare system, and will be the subject of a public inquiry once legal proceedings are finished.

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