By NICO SCAVELLA
Tribune Staff Reporter
THE Court of Appeal has ordered a retrial for a man previously sentenced to 35 years in prison for murdering another man outside of a nightclub in Abaco six years ago in what he previously claimed was an accident.
The appellate court, in a written ruling, quashed Nevin Curry's sentence for murdering Stanley McIntosh at the Solid Gold nightclub in 2012, and in the "interest of justice," consequently remitted the matter to the Supreme Court for retrial.
Appellate Justices Stella Crane-Scott and Roy Jones both concurred Curry was "improperly" deprived of having an alternate verdict of manslaughter placed before the jury, based on Curry's claims in his pre-trial confession statement that he "did not mean" to shoot the deceased.
Thus, Justices Jones and Crane-Scott agreed the "failure" by the trial judge to properly direct the jury on the alternative verdict of manslaughter "touches the safety" of Curry's conviction and "constitutes a miscarriage of justice".
However, former appellate President Dame Anita Allen maintained Curry's claim the shooting was an accident was an "expression of his feeling after realising the effect of what he had done" and "was not indicative of lack of intent at the time of the commission of the offence".
On February 26, 2012, a fight broke out at the Solid Gold nightclub in Marsh Harbour between McIntosh and another man named Silas Forbes. After the men had been parted and the fight appeared to have died down, Silas Forbes dashed towards McIntosh and began fighting with him again.
Forbes' brother, Shakeel Forbes aka Keely, intervened by using a bottle to hit McIntosh in the head, causing him to fall to the ground. Curry, who was not involved in the fight, subsequently approached McIntosh, shot him in the chest, then ran to a nearby vehicle with the Forbes brothers and drove away.
Later that day, during a record of interview, Curry told the police he was outside the Solid Gold club where his van was parked in a gas company's yard when he said he noticed a fight taking place near the entrance to the club and she made his way towards the fight. As he got closer, he said he realised Silas was fighting and "some boys from Blackwood was beating him." He said in trying to protect Silas, he took out his gun and shot at the individual Silas was fighting with.
Curry said in the record of interview that he "did not meant to shoot" McIntosh and that he was only "trying to scare him".
Curry went on to say that after he fired the shot, he saw the victim, who was seated on the floor, lay back. Afterwards he said he ran to his van because he was "scared". Silas and another individual only identified as Dremeco also ran to his van and he subsequently drove off.
Curry said after they left, someone called Silas' phone and told them it was McIntosh who was shot. According to the record of interview, Curry knew McIntosh from Blackwood, and the two were "cool" towards each other.
Curry also said McIntosh had previously given him a cigarette in Solid Gold.
"I did not mean to shoot him," Curry told police. "It was an accident…"
Curry was sentenced to 35 years for McIntosh's murder by Justice Carolita Bethell, who determined it was a reasonable punishment considering all of the circumstances of the case.
Curry was due to serve 31 years after his time on remand was taken into account.
He appealed his conviction on September 28, 2016, and relied on seven grounds, which included but were not limited to, that the trial judge failed to put his defence to the jury, as well as the reasonableness and safety of the verdict regarding his evidence.
During her disposition, Dame Anita addressed Curry's issue with the trial judge's statement to the jury that: "You may have no difficulty in determining that Stanley McIntosh was indeed murdered."
Curry contended that this statement did not "give any recognition" to the confession statement that affects the issue of intent, and that the judge "usurped the function of the jury" by determining that whoever shot McIntosh "possessed the requisite intent to kill".
However, Dame Anita said she was of the view that the trial judge "gave an impeccable direction on the element of intention relative to the offence of murder".
Dame Anita further noted "under no circumstances could a person aim a loaded gun at someone's chest, pull the trigger and not intend that that person should die". Thus, she said the onus was on Curry to "rebut the presumption of intent to kill" by providing evidence that him firing the gun was an accident.
She further noted even if the trial judge was "obliged" to leave Curry's claims of it being an accident for the jury's consideration, she is of the view that even if properly directed on that issue, given the "cogency" of the evidence against Curry, the jury "would inevitably have convicted the appellant of murder".
"In the absence of such evidence and based on what the appellate told the police during his (record of interview) and (confession statement) I am of the view that the appellant's claim that he did not mean to do it/it was an accident was an expression of his feeling after realising the effect of what he had done and was not indicative of lack of intent at the time of the commission of the offence."
Thus, Dame Anita disregarded all of Curry's grounds of appeal save for his first ground, that the trial judge erred in law by admitting the confession statement into evidence as it was not obtained voluntarily.
However, Justice Jones said while the trial judge was "entitled to refuse to leave the defence of accident to the jury as it clearly did not arise," there was conversely "no other evidence ruling out as a possibility the appellant's claim of a lack of intention to shoot the deceased". He noted: "In our view the jury should have been directed by the learned trial judge to have regard to all the relevant circumstances of the case, including the incriminating and exculpatory parts of his confession statement together with what he did on the night in question.
"This failure by the learned trial judge in our view touches the safety of the appellant's conviction. Finding as we have, it is otiose to consider the other grounds of appeal argued by the appellant."
He added: "For these reasons, we consider that the appellant was improperly deprived of having an alternative verdict of manslaughter placed before the jury, with the result that the verdict is safe and unsatisfactory. Accordingly, we allow the appellant's appeal, quash the conviction and sentence and remit the matter to the Supreme Court for the appellant to be retried in the interest of justice."