The Tribune

By FARRAH JOHNSON

fjohnson@tribunemedia.net

THE Court of Appeal yesterday overturned the murder and manslaughter sentences of two men accused of stabbing and killing another man in 2016, after the accused men argued that the trial judge failed to use his discretion when he allowed a statement from a witness who did not appear in court into evidence.

Shawn McPhee and another man who was charged when he was a minor were accused of murdering Cyril Cartwright on February 13, 2016. The men were identified as Cartwright’s killers by Devon Sands, a key witness, who did not appear in court during the trial. On November 2, 2017, McPhee was found guilty of murder and sentenced to 28 years in prison. The other man was found guilty of manslaughter, and was sentenced to 14 years behind bars. Both men appealed their convictions on the grounds that their sentences were “harsh and excessive” and the verdicts were unsafe.

Yesterday, Justices Sir Michael Barnett, Maureen Crane-Scott and Milton Evans ruled that Mr Sands’ statement should not have been admitted into evidence after concluding that the trial judge was wrong when he decided that the Crown had taken all of the reasonable steps to locate the key witness.

According to a judgment on the court’s website, although Mr Sands did not appear in court, his statement was admitted into evidence by virtue of an application by the Crown. 

“In his statement, Sands identified the appellants as the perpetrators who committed the offence alleged,” the judgment read. “In that statement, Devon Sands says McPhee, (the other male) and himself were fighting a person, throwing punches. Sands said he stopped but that McPhee then took out a knife, and that McPhee, then stabbed this person. After that, the person ran, (and) McPhee and (the other accused) ran behind that person. (He said the second man) held the person after McPhee stabbed him again. Other than the evidence of Sands, there was no other evidence capable of connecting the intended appellants to the crime committed.”

During their trial, both men denied being involved in Mr Cartwright’s murder. The intended appellants also chose not to call any witnesses to the stand in their defence.

Still, in an effort to satisfy the court that all reasonable steps were taken to locate Mr Sands, the prosecution called Corporal Moses Curry and Johnniemae Bethell, from the Office of the Attorney General to the stand to testify. 

According to the court documents, on September 28, 2017, Cpl Curry, acting on a tip, proceeded to Mr Sands’ last known address. However, at the time, he stated that the address given to him was that of a food store. Cpl Curry then said he received additional information which led him to Lee Lane just off Alexander Boulevard. There, he proceeded to a yellow and white apartment complex where he spoke to Shervanette Minns, Mr Sands’ mother, who told him that Mr Sands no longer lived there. When Cpl Curry asked her for Mr Sands’ phone number, she refused to give it to him. Still, she did tell him that she believed Mr Sands was living somewhere in Abaco. 

“Corp Curry further stated that he contacted CDU and requested a name check for Devon Sands. He indicated that he obtained an address for a family member as well as a phone contact in the Treasure Cove area of Abaco. He stated that he made several attempts to contact the family member by phone but the two phones were out of service and that as a result he faxed information to the Marsh Harbour Station and the Treasure Cay station requesting assistance in locating Mr Sands, all of which were unsuccessful. He stated that he conducted several additional checks at the residence of Ms Minns, who informed him that the information that he gave her had been passed on to Devon Sands. He stated that Ms Minns informed him that her son had some fears and some concerns. 

Ms Bethell, of the Office of the Attorney General, also testified as to her efforts to contact the witness, principally of contacting his mother by telephone, and going, along with Corp Curry, to the listed residence of the witness, without success.

In their judgment, the justices noted that while it appeared as if Mr Sands was “deliberately avoiding appearing in court to testify,” the Crown still had a duty to ensure that they made all of the reasonable steps to locate him. 

“The fact that a witness is clearly avoiding being located imposes on the Crown the responsibility to take appropriate steps to counter as best as possible his efforts to avoid detection,” the panel noted. “It follows that in those cases the normal steps like putting notices on the radio and in newspapers would not be as effective. The Crown, however, has the same resources available to them which they normally utilise to locate criminals and suspects who are wanted by the police. At the end of the day, the Crown has the onus of satisfying the court that all reasonable steps were taken to find the witness.”

The justices said that while they have no issue with the evidence that detailed the steps taken to locate Mr Sands in Nassau, they were not satisfied with the efforts made to locate the key witness in Abaco. 

“It is not clear what if any efforts were made by the police in Abaco,” they said. “Corporal Curry does not say whether he faxed a photo of Sands to assist the police in Abaco in their search. However, even more telling is that there is no information provided by the officers at the Marsh Harbour Station nor the Treasure Cay Station as to what steps, if any, they took on receiving the requests. In these circumstances, it is difficult to see how a proper finding can be made that those efforts were reasonable.”

In their judgment, the justices concluded: “In the circumstances as we have found them, we accede to the applications by both intended appellants for leave to appeal and proceed to allow the appeals and quash the convictions and sentences of both men.

“...As was clear from the evidence and as expressed to the jury by the trial judge during his summation, in the absence of the evidence of Devon Sands, there was no evidence connecting the appellants to the crime. The Crown had the opportunity to either bring him as a witness or failing that provide the court with proof that notwithstanding have taken all reasonable steps to locate him, they were not able to do so. In our view, the Crown failed in this obligation.

“This was significant as the statement itself shows that Sands was also involved in the attack on the deceased. It follows that he clearly had an interest to serve and the inability of the appellants to be able to confront him was highly prejudicial in the circumstances of this case. We do not see that the interest of justice would be served by giving the Crown a second chance to make right their evidential deficiencies. We therefore decline to order a new trial. The appellants are therefore acquitted.”