The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Court of Appeal has overturned the convictions of three men who were accused of murdering Joyelle McIntosh, a Queen’s College elementary school teacher whose killing in 2015 shook the country.

McIntosh and her then 13-year-old son were driving along Parkgate Road when, the boy testified in the Supreme Court, his mother swerved to avoid hitting a man who was lying in the road.

Seconds after swerving, McIntosh was shot in her neck; she continued driving but crashed into a wall shortly after. Her son left the car and ran away. Prosecutors said he was shot at while running from the scene.

Johnny Mackey, Armando Sargent and a man who was arraigned when he was a juvenile were charged with murdering the mother, attempting to murder her son, conspiracy to commit armed robbery and attempted armed robbery. The third intended appellant, who has not been named since he was charged as a minor, was accused of actually shooting McIntosh.

Mackey and the third intended appellant were later convicted of all of the offences while Sargent was convicted of manslaughter, conspiracy to commit armed robbery and attempted armed robbery.

 The men filed an application for an extension of time to appeal their applications. Ultimately, the Court of Appeal approved Sargent and Mackey’s applications for an extension of time, quashed their convictions and did not order a retrial. They approved the third man’s application for an extension of time, quashed his convictions and sentences and ordered a retrial.

 Prosecutors relied on confessions during the Supreme Court trial. The accused argued those confessions were obtained through oppression.

 Regarding the man who was charged as a minor, the alleged shooter, the Court of Appeal wrote in its judgment: “As is unfortunately too often the position, the only evidence connecting the intended appellant to the crimes was a confession given to the police.”

 The judgment said: “Sargent challenges, inter alia, the learned judge’s decision to admit his statement and record of interview and the judge’s decision not to accede to his no case submission. Sargent alleged that the record of interview and statement attributed to him were obtained through oppression, but the officers denied his assertions. The judge below heard the evidence and preferred the evidence of the officers. In the circumstances counsel conceded that the judge had the discretion to decide whose evidence he would accept.

 “Relative to the submission of no case to answer, while the evidence demonstrates that Sargent knew a robbery would occur, there was no evidence led that could lead to a reasonable inference that he knew a gun was on the scene before the commission of the offences.

“There was no request by the Crown or the judge to leave the alternate offences of robbery and attempted robbery to the jury, therefore those offences were not left to be considered by the jury. In these circumstances Sargent’s case ought not to have been left for consideration by the jury. It is not in the interest of justice, therefore, to order a retrial.

“Mackey was selected from an ID parade by (the son) as the man lying in the road. “During his record of interview Mackey told officers that he was lying in the road because he caught a cramp. Mackey did not sign the record of interview.

 “At trial Mackey testified he was forced to admit that he was lying in the road to cause a car to stop in furtherance of a robbery. Similar to Sargent’s case, no evidence was led by the Crown that Mackey had knowledge of a plan to use a firearm. It is clear that each of the offences for which Mackey was convicted was dependent on a finding that he was a part of a plan to commit armed robbery with the use of a gun.

 “No alternate offences were left for consideration by the jury. As the Crown’s evidence did not meet the required standard to give rise to a proper conviction it would not be in the interest of justice to order a retrial in Mackey’s case.

“The evidence against (the third intended appellant), a juvenile and the shooter in the Crown’s case, was two confessions, one of which was given without the presence of his mother or an attorney. The judge below found that confession to be a spontaneous admission. The second confession was given in the presence of a social worker and a pastor as, on the evidence of the police, (the) mother could not be contacted.

 “The court is of the view that the first confession ought not to have been admitted and its admission prejudiced the jury and brings the safety of the conviction into doubt. The circumstances of the case are appropriate for (him) to be retried.”

 The judgement states that the third intended appellant is to remain on remand until he is retried.