An appeals court on Monday threw out Shavargo McPhee's murder conviction for shooting a store clerk during an armed robbery after finding police mishandled his interview as a juvenile.

The Privy Council, the country's final appellate court, has left it up to the Court of Appeal to decide whether McPhee, who was serving a life sentence, will be re-tried for the November 27, 2008 murder of Brendon Dion Strachan in Marsh Harbour, Abaco.

McPhee was just six months shy of his 18th birthday when he was arrested for the murder. Police were unable to contact his mother, who was in New Providence, on cell phone and landline numbers provided by McPhee.

After McPhee was in custody for 30 hours, police contacted a local bishop to witness his confession.

Defense lawyer Edward Fitzgerald, QC, argued that police failed to apprise the bishop of the role of an appropriate adult when a juvenile is in custody.

In an unsworn statement during the trial, McPhee alleged that police beat him prior to the confession. He alleged that officers covered his head with a plastic bag and beat him with a piece of wood that was wrapped in a towel.

Police failed to follow the law in properly advising the bishop of his role. The bishop testified that he was merely there to witness a statement.

McPhee was not fed for approximately 20 hours before the interview began and in those circumstances, Fitzgerald argued, the Crown had failed to meet the criminal standard of the voluntariness of the confession.

The law states that "an appropriate adult should be informed that he is not expected to act simply as an observer. The purposes of his presence are, first, to advise the person being questioned and to observe whether or not the interview is being conducted properly and fairly; and, secondly, to facilitate communication with the person being interviewed".

The Privy Council said, "The bishop was plainly not apprised of the nature of his role as an appropriate adult.

"For the reasons given above, it is not the law that such a person is expected to advise the suspect as to the law, still less routinely to tell him not to answer questions.

"But if the bishop had been told the nature of his role, it is likely that he would have wished to speak to the appellant alone, or at the least to make some inquiries of him of what had happened during his time in custody.

"Whether he would have ascertained from him what his account was of events since his arrest cannot be known, but he might have discovered that the appellant had been speaking with investigating officers and that might well have led to further enquiry as to what had transpired."

The Privy Council noted that McPhee's whereabouts were unexplained when he was removed from the cells.

"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."

Navjot Atwal appeared for the Crown.

Artesia Davis, Guardian Senior Reporter

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