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Judge tells jurors acquittal not an option for couple charged in Mba girl's death

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WINNIPEG - A judge has told jurors they can't be ruled by emotion or a desire for punishment when they decide the fate of a Manitoba couple charged with torturing a five-year-old girl and leaving her to die on a cold basement floor.

In her instructions to the predominantly female jury Tuesday, Judge Karen Simonsen also said a "not guilty" verdict isn't an option.

Lawyers for both Samantha Kematch and her common-law husband Karl McKay have admitted their clients are guilty of manslaughter in the death of the woman's daughter, Simonsen pointed out.

Phoenix Sinclair died in 2005 after suffering horrific abuse, including being shot with a pellet gun and beaten with a metal rod. Her remains were found in a shallow grave the following year near a garbage dump close to the family home in Fisher River, Man.

The couple was charged with first-degree murder after Kematch tried to pass off another child as Phoenix to convince welfare investigators and the RCMP that her daughter was still with the family.

Jurors can accept the manslaughter argument, or convict the couple of first-or second-degree murder, Simonsen said.

"It's not open to you to find them not guilty of any offence," she said. "You must not be influenced by public opinion ... Punishment has nothing to do with your task."

Court heard during the couple's trial that Phoenix suffered months of abuse at the hands of her guardians - from being forced to eat her own vomit to being choked regularly until she lost consciousness.

The Crown argued Phoenix's death was the inevitable result of being "brutalized, starved and used as a punching bag."

Separate defence lawyers suggested Kematch and McKay may have been horrible parents, but they were not murderers and should be convicted of no more than manslaughter.

Through their lawyers, the two accused blamed each other for Phoenix's death. But both are considered innocent until proven guilty, Simonsen stressed.

"That means the accused started the trial with a clean slate," she said.

Jurors deliberated for about an hour Tuesday night. They will resume Wednesday morning.

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