COA ruled trial judge erred by admitting into evidence statement of no-show witness

NASSAU, BAHAMAS — Two men convicted of murdering Cyril Cartwright in 2016 will walk free after the Court of Appeal quashed their convictions and declined to order a new trial.

Court of Appeal Justices Milton Evans, Sir Michael Barnett and Stella Crane-Scott presided over the matter.

Prosecutors accused Shawn McPhee and Jordan Ellis of stabbing Cartwright to death on Sumner Street, Nassau Village in February 2016.

During the trial, before Justice Bernard Turner, the prosecution’s key witness, Devon Sands, did not appear at court.

However, his statement identifying McPhee and Ellis as the people responsible for the murder was admitted into evidence.

In that statement, Sands said he and the two men were fighting another man “throwing punches”, but when he stopped, McPhee withdrew a knife and stabbed the victim, who ran away.

He claimed McPhee and Ellis gave chase and caught up to the man, where Ellis “held the person and McPhee stabbed him again”.

According to the appellate court, other than the evidence of Sands, there was “no other evidence capable of connecting the intended appellants to the crime committed”, though the prosecution called a number of other witnesses.

McPhee and Ellis denied all allegations.

McPhee was convicted and sentenced to 28 years imprisonment in November 2017 while Ellis was found guilty of manslaughter and sentenced to 14 years.

The men appealed their convictions on grounds the judge erred in allowing a statement of a key witness, who did not appear in court, into evidence.

In his ruling, Justice Evans said the Crown has the onus of satisfying the court that all reasonable steps were taken to find a witness.

“The question is whether the evidence presented in this case allows for it to be said that in the circumstances all reasonable steps were taken to locate the witness Sands,” the appellate court wrote.

“It is our view that the trial judge erred when determining that all reasonable steps had been taken.

“He failed to take into consideration the limitations in the Crown’s evidence as to their efforts to locate Sands.

“If there was to be a proper finding, the Crown needed to provide details as to the steps taken, if any, to locate Sands in Abaco.

“To this extent, the learned judge was clearly wrong to find that all reasonable steps were taken.

“It follows that in the absence of reasonable steps being taken to locate Sands, it cannot be said that it would have been in the interest of justice to allow his statement to be admitted into evidence and therefore his statement ought not to have been admitted.”