By RICARDO WELLS
Tribune Staff Reporter
rwells@tribunemedia.net
THE Court of Appeal has quashed the September 2016 manslaughter conviction of Durante Davis who was accused of providing the knife used in the killing of teenager Adonai Wilson.
Appellate judges Hartman Longley, Justice Crane-Scott and Michael Barnett in a written ruling posted to Court of Appeal's website yesterday, quashed both the conviction and sentencing of Davis on the grounds that key witness statements were improperly admitted.
The 13-page ruling noted the Crown applied to have both statements admitted pursuant to Section 66 of the Evidence Act, to which the trial judge acceded, resulting in the conviction of Davis.
According to the trial's records, Wilson died from stab wounds inflicted upon him by a knife during a fight after school. He was a 12th grader at Doris Johnson High School.
Trial records indicate the wounds were inflicted by another person, Duhan Munnings, Davis' cousin who pleaded guilty to the charge against him.
The case against Davis was based upon allegations that he gave the knife to his cousin and was purported to have told Sha'Nyha Hanna, one of the witnesses, when asked what he was going to do with the knife: "Bey these (racial slur) done gang my cousin. I ain't ga let them gang my cousin."
Another witness Kenria Cunningham said that she saw Davis give the knife to his cousin and it was the same knife that the cousin had used to inflict the wounds on Wilson.
The Court of Appeal's ruling cited the Evidence Act contains a number of pre-conditions, not all of which may apply to the facts in a given case.
The ruling explained: "In this case, the relevant pre-condition which was in play before the trial judge in the court below was that set out in Section 66(2)(c), to wit, 'that, the identity of the person who supplied the information being known, all reasonable steps have been taken to find him, but that he cannot be found.'"
Trial records noted that neither witness gave direct oral evidence at the trial and therefore were never subjected to cross-examination.
The prosecution applied to have the statements that they gave to the police admitted under the provisions of Section 66 of the Evidence Act on the basis that "all reasonable steps have been taken to find them and they cannot be found."
The prosecution conceded that without the evidence of the two witnesses the conviction would be unsafe.
The ruling added: "It appears that the trial judge accepted the proposition advanced by the Crown… and determined that once he was satisfied that it was in the interest of justice to do so and that that there was no 'undue prejudice to the accused' he was entitled to admit the evidence.
"In this regard we are of the view that the judge misapplied the law. In our judgment, before the question of the interest of justice arises under Section 66(4), the Crown must establish the factual predicate that 'all reasonable steps have been taken to find (the witness) but that he cannot be found.'
"If the witness, with reasonable steps, can be found, even if he is unwilling to give evidence and may seek to avoid giving evidence out of fear, an application under Section 66 must be refused. In this case, we are satisfied that the factual pre-condition in section 66(2) (c) had not been met.
"The prosecution knew exactly where both (witnesses) could be found," the ruling said.
"This, in our view, is not the circumstance envisaged by Section 66 of the Evidence Act. The admission of a hearsay statement in a criminal trial is an exception to the rule.
"The conditions in Section 66(2) must be met before a judge can exercise his discretion to admit the hearsay statement. If those conditions are not met the hearsay statement cannot, as a matter of law, be admitted.
"The fact that a witness is unwilling to testify (whether out of fear or otherwise) is not a sufficient basis for admitting into evidence a statement given by that witness to the police," the ruling also noted.
It continued: "In this case we do not order a retrial."
"We considered the factors which the Privy Council in Reid v R [1980] AC 343 has said that a court must consider in determining whether to order a new trial. The conviction was not quashed because of some technical blunder of the trial judge. It was quashed because evidence which the Crown advanced should not have been admitted.
"Without that evidence the conviction could not stand. In these circumstances, the appeal is allowed; and the conviction and sentence quashed," the ruling concluded.
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