The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

POLICE detectives’ failures to properly adhere to the Royal Bahamas Police Force’s own guidelines concerning the treatment and questioning of juveniles in custody was the reason the London-based Privy Council yesterday made the decision to quash the murder conviction of Shavargo McPhee.

The Judicial Committee of the Privy Council noted that neither the testimony of police nor the detention record of the then 17-year-old gave an explanation for the several periods McPhee was out of his cell during his 31 hours of detention before a confession was taken from him in the presence of a pastor.

This was contained in a 17-page judgment delivered by Lord Hughes concerning McPhee’s challenge to the Court of Appeal’s ruling to uphold his conviction in the death of a food store cashier.

The court said it was understandable that the trial judge concentrated - in his ruling at the voir dire - on whether the confession was voluntary since the case made by McPhee was based on the assertion that the confession came after prolonged torture.

However, the country’s highest court noted that the judge “does not appear to have been addressed on the failure to apprise the bishop of the full role of an appropriate adult.”

“More importantly, he does not appear to have been addressed, separately from the allegation of torture, on the central matter of unrecorded interviews.”

“In those circumstances, the board must make its own assessment in relation to those two matters. It is very conscious that it has not heard the evidence in person, and has only a transcript. For this reason, it proceeds on the basis of the police evidence alone, disregarding the unsworn and rejected assertions of the appellant, and it has warned itself that the evidence of witnesses may be more impressive in person than is suggested by the written page.”

“However, limiting itself in that way, it is apparent to the board that the evidence of the police officers, and particularly of Detective Sergeant Johnson, was far from satisfactory. The several periods of removal from the cells were simply entirely unexplained. It is not easy to see any excuse for this. Either the principal investigating officer was himself concerned with the suspect during these periods or he ought to have discovered who was, and what was happening.”

“This absence of explanation for the whereabouts of the appellant has to be combined with the overwhelming likelihood that the investigators would have wished to question him, with the fact that the bishop was called in on the basis that a statement was imminent, and with the patent improbability that the recorded questions and answers constituted the very first things which were said to him concerning the murder which he was alleged to have committed. When those things are taken together, they lead inevitably to there having been interviews which were unrecorded. Informal they may have been, but it is to the dangers of informal interviews that the requirement for a record is in large part directed. The significance of these interviews cannot be gauged simply because of the lack of record.”

“To that bleak conclusion must be added the perfunctory manner in which the bishop was involved without any attempt to explain his full function, the probable lack of food and the shortfall in the efforts to get a parent or guardian to the police station.”

“For the reasons set out above, the board will humbly advise Her Majesty that the appeal against conviction should be allowed. The appeal against the form of sentence, which was not in issue, does not accordingly arise. The question of whether, if application for it be made, there ought to be a re-trial, should be remitted to the Court of Appeal,” Lord Hughes concluded.

The full ruling can be seen online at the JCPC’s website: https://www.jcpc.uk/cases/jcpc-2015-0040.html.

McPhee, now 25, was convicted in 2011 for the November 2008 murder of Brendon Dion Strachan in Marsh Harbour, Abaco and sentenced to life in prison.

Strachan was a cashier at the family’s M&R food store when he was gunned down inside the storeroom.

McPhee, a year after his conviction, unsuccessfully appealed his conviction on the basis that the judge should not have admitted his confession statement into evidence given that it had not been voluntarily obtained.