Todd v. The Queen (The Bahamas) [2008] UKPC 22

Judicial Committee of the Privy Council

Case No Privy Council Appeal No 95 of 2006

Venue FROM THE COURT OF APPEAL OF THE BAHAMAS - - - - - - - - - - - - - - - - -

Between

ToddAppellant

The Queen (The Bahamas)Respondent

Before

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Mance

Sir Christopher Rose

Dame Joan Sawyer

Date 8 April 2008

[1]:- Lord Hope of Craighead Lord Rodger of Earlsferry Lord Walker of Gestingthorpe Lord Mance Sir Christopher Rose - - - - - - - - - - - - - - - - [Delivered by Sir Christopher Rose ] The appellant appeals by special leave of the Board, given on 22 nd November 2006. Following a 4 week trial in the Supreme Court of the Bahamas, before Dame Joan Sawyer CJ and a jury, he was convicted on 23 rd January 1998, of the murder of the deceased, Venette Bellizaire, in 1994. He was sentenced to death. On 16 th December 1999 the Court of Appeal of the Commonwealth of the Bahamas (Carey P, Zacca and Hall JJA) dismissed his appeal.

[2]The deceased was killed some time after 6.30am on 25 th August 1994, when she was seen getting into a uniquely distinctive Nissan motor car which belonged to Otis Palmer. Mr Palmer gave evidence that he lent the car to the appellant between 9pm and 10pm on 24 th August and he returned it at about 8am on 25 th . Mr Palmer's girlfriend Margaret Barr gave evidence that the car was missing when she returned home about 1am on the morning of the 25 th and the appellant returned it later that morning. Later that day she found two earrings in the car which she handed to the police on 21 st September. The deceased's parents identified the earrings as belonging to her. Mr Palmer, meanwhile, had been arrested on 20 th September on suspicion of the murder, but he was released following the appellant's arrest. This took place at 5.20am on 21 st September and, on the same day at 1.20pm, he was shown the earrings by D.S. McCoy. Later the same day, in circumstances giving rise to the first ground of appeal, the appellant went with police officers to bushes near Cromwell Drive, Freeport. Bones, said to be those of the deceased and showing fractures of the skull due to several blows, were found, together with her slippers and a bangle.

[3]During the trial, while D.C. Johnson was giving evidence of taking photographs, on 21 st and 22 nd September, defence counsel indicated that, at the end of cross-examination, he would be making submissions about two of those photographs, numbered 4 (of the appellant pointing at the skeletal remains) and 25 (of the appellant pointing at a garbage bin). It was put to D.C. Johnson in cross-examination that, following the shooting of a snake by D.C. Wilchcombe, the appellant had been forced at gunpoint to kneel and point for photograph 4 and that the following day, the appellant had again been forced to point for photograph 25. He denied these allegations.

[4]At the conclusion of D.C. Johnson's evidence, in the absence of the jury, defence counsel submitted that photographs 4 and 25 should be excluded as being more prejudicial than probative and because they had been obtained by improper means, contrary to s.178 of the Bahamian Evidence Act 1996. The judge pointed out that there was no evidence of improper means. Counsel said he would return to the matter on the voir dire. Other evidence was then called for the prosecution including that about the motor car, the last sighting of the deceased and the earrings to which reference has already been made.

[5]A voir dire was then held to determine the admissibility of oral and written confessions said to have been made by the appellant. Several police officers gave evidence in relation to events at the police station following the appellant's arrest and at the crime scene. In particular, D.S. McCoy gave evidence that the appellant said at the police station "Otis Palmer who is in the cell have nothing to do with it. I killed her and I can show you where it happen". He directed the police towards a bushy area at Cromwell Drive and said "I killed her over there". When they reached the bushes the accused pointed and said "There are the bones and clothing of Venette Bellizaire". The appellant gave evidence denying making these statements and saying that a written confession (the terms of which were not seen by the trial judge) was induced by mistreatment by a number of officers: he was threatened, beaten, pistol whipped and given electric shocks. He had deliberately misspelt his name in the written statement to prove that he had been beaten. The photographs taken at the crime scene were staged. The photographer was already there on 21 st when he arrived with other officers. After a snake had been shot at several times and killed by D.C. Wilchcombe, he was threatened with being shot and was forced to point for photograph 4 and, the nextday, for photograph 25. He called his brother and Otis Palmer in support of the allegations of mistreatment, all of which were denied in evidence by the several officers said to have been involved.

[6]The judge ruled that the oral and written confessions be excluded. She said she was not sure (the onus being on the prosecution) that no threats were made. She had a reasonable doubt about whether the snake-shooting incident occurred. She was not satisfied the appellant had been told that he could consult an attorney, as is guaranteed by Article 19(2) of the Bahamas Constitution. She said "It doesn't take much to make a statement inadmissible". A discussion took place with Counsel about the status of the evidence about the visits to the crime scene on 21 st and 22 nd . Reference was made to sections 20 and 178 of the Evidence Act. A distinction was drawn between the confessions and the visits. The judge said "Obviously he's been to the Cromwell Drive area because that's apparent from the pictures and that's where the police say they found the bones. To some extent there's a conflict between them as to how that was done. Police say he pointed it out and he says he didn't. So obviously the jury will have to resolve that. I don't know that I can do very much about that because the pictures have gone in now you see". Later, the judge said to prosecuting counsel "The point is, anything that suggests he made a confession is basically out. But of course the exception is – so much of the confession as relates to the finding of these things is admissible. That's what sub-paragraph 5 says" (She was clearly intending to refer to s.20(4) of the Evidence Act). She also referred to Lam Chi-ming v The Queen

[1991] 2AC 212

and to the difference between s.20(4) and the English Police and Criminal Evidence Act 1984, (PACE) and the Indian Evidence Act 1872. She referred to s.178 but concluded that, in view of the terms of s.20(4), she could not exclude the evidence about the finding of the bones under s.178(1).

[7]In due course, when summing up, the judge posed the question in relation to events at the crime scene "Who do you believe, Mr Johnson or the accused and the other police witnesses who said he led them to the spot?"

[8]After the judge's ruling, the jury were recalled. D.S. McCoy gave evidence in chief about going to the crime scene at the accused's direction and the taking of the photographs. He denied, in cross-examination, knowing in advance where the bones were. He made no reference in his evidence to the confessions which the judge had excluded. Subsequently, at the jury's request, the court went to view the crime scene. Two weeks after he had first given evidence before the jury, D.S. McCoy was recalled, apparently for the purpose of putting on record what had taken place during the view. His evidence in chief, which again included an account of how the accused had shown where the bones were so as to explain what the jury were shown, passed without incident. In cross-examination he was challenged about what had happened when he first went to the scene with the accused and, in particular, about the direction in which the accused had pointed. His answer included the following:

"when I stopped the car he pointed to the western side….and said 'Venette, I killed her over there'. We exit the car and he led us to the bushes."

Defence Counsel said "I'm only speaking about where the accused pointed. He never told you anything."

The judge intervened:

"The jurors will disregard any answer about what the accused is supposed to have said. There's no evidence before you about that."

Cross-examination continued about other matters.

[9]The appellant's defence was alibi, in support of which he called his brother-in-law. He claimed to have been at a family prayer-meeting between 6am and 7am on 25 th August and not to have borrowed Palmer's car on that date.

[10]The Court of Appeal held that evidence of what the appellant did leading to discovery of the bones was admissible under the terms of s.20(4) although this did not relieve the judge of the obligation to decide admissibility by reference to s.178. The Court concluded that the trial judge had exercised her discretion under s.178 but, if they were wrong, they would have exercised the discretion so as to admit the evidence.

[11]Section 20(1) and (2) of the 1996 Act, which are, with immaterial differences, identical to s.76(1) and (2) of PACE, provide for the admissibility of confessions proved beyond reasonable doubt not to have been obtained by oppression nor rendered unreliable by anything said or done at the time. Section 20(4) provides:

"The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence of any facts discovered as a result of the confession and of so much of the confession as relates thereto ."

Save for the additional words underlined, this provision is identical to s.76(4)(a) of PACE. Section 76(5) and (6) of PACE are the entirely different provisions which the judge had in mind: They render a fact discovered as a result of an excluded confession admissible only when evidence is given by the accused or on his behalf as to how the fact was discovered.

[12]Section 178(1) (like s.78(1) of PACE) provides:

"In any criminal proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances, in which the evidence was obtained, the admission of the evidence would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it."

[13]Before the Board, Mr Guthrie QC (who did not appear below) advanced two grounds of appeal. First, the judge having excluded the oral and written confessions ought also to have excluded the evidence of the appellant directing the police to and at the crime scene. Secondly, the giving of inadmissible evidence by D.S. McCoy should have resulted in the discharge of the jury.

[14]As to the first ground, he accepted that trial counsel should have challenged the admissibility of the evidence before he did. He submitted that s.20(4) does not authorise the admissibility of any part of an involuntary confession. The fact that the bones were discovered was admissible but any part of the inadmissible confessions and the evidence as to why the police went to the crime scene were inadmissible. He relied on the authority of Warickshall (1783) 1 Leach 263 and also on two authorities concerned with s.27 of the Indian Evidence Act 1872 Kottaya v Emperor AIR 1947 PC 67 and Anter Singh v Rajashthan 2004 ILR 1.543. The judge should have excluded evidence as to the appellant's conduct leading to the discovery of the bones as being part of the excluded confessions. Counsel referred to Ibrahim v The King

[1914] AC 599

and Lam Chi-ming v The Queen (above). He submitted that if s.20(4) lays down a different rule from these authorities it must be mitigated by s.178, otherwise it will be inconsistent with the Constitution of the Bahamas, which prohibits torture and inhuman or degrading treatment and guarantees a fair hearing. He referred to Bowe v The Queen [2006] I WLR 1623, Pillay and others v S (2004) 2 BCLR 158 and Sweeney [2000] 50 OR (3d) 321. In saying what she "must" do by reference to s.20(4) the judge showed she wrongly believed she had no discretion.

[15]As to the second ground, Mr Guthrie submitted that, following D.S. McCoy's gratuitous evidence, which had been ruled inadmissible, the judge should have discharged the jury. Counsel relied on her later comment that she would have done so had the evidence been given in chief.

[16]Mr Dingemans QC (who did not appear below) on behalf of the Crown submitted, as to the first ground, that the photographs did not advance the argument: the important matter was the direction of the police to the scene by the accused. When summing up, the judge, in clearest terms, left for the jury's resolution the conflict between the police and the appellant as to why they went to the crime scene and whether the photographs were staged. He referred to Gould (1840) 9 C&P 364 as the genesis of s.20(4): a policeman to whom a statement was made under peculiar circumstances was permitted to state, after a lantern had been found, that the prisoner had told him that he had thrown it there. The English common law developed along different lines from the Bahamian legislation – see Liam Chi-ming v The Queen (above) and Timothy v The State [2000] I WLR 485. The plain meaning of s.20(4) is that parts of a confession shown to be true by a subsequent discovery are admissible. There has been such a legislative provision in the Bahamas since 1904. There are similar provisions in the legislation of other countries including India (s.27 of the Indian Evidence Act 1872 – see Anter Singh v Rajasthan (above)), Ceylon (s.27 of the Evidence Ordinance – see Ramasamy

[1965] AC1

) and South Africa (s.218 of the Criminal Procedure Act 1977 – see Pillay & Others above) none of which has been the subject of effective constitutional challenge. Case law in Ontario has developed a similar principle (see St Lawrence [1949] OR 215 and Wray

[1971] SCR 272

) albeit with a modification providing a discretion to exclude, arising from the Canadian Charter of Rights and Freedoms (see Sweeney (above) paragraph 2(c) and (d) of the judgement).

[17]Mr Dingemans further submitted that, the confessions having been excluded because the prosecution could not prove they were voluntary, the evidence about the appellant directing the police to the scene was properly admissible under the clear words of s.20(4). In so far as s.20(4) might reward police misconduct, whereas modern democracy requires fair play, s.178 operates to afford the judge an overriding discretion. Had the judge been sure that the snake-shooting incident had occurred she could only properly have excluded the evidence that the appellant took the police to the bones. As she was not sure, she was entitled to admit that evidence in order to give effect to s.20(4) in the light of s.178. It is a proper exercise of discretion to admit what the jury might well conclude has been proved to be true but to exclude what cannot be so proved.

[18]As to the second ground of appeal, Mr Dingemans submitted that the judge dealt with D.S. McCoy's answer immediately and properly, and no submission was made to discharge the jury, even when the judge later made the comment about what she would have done had the evidence been given in chief. Continuing with the trial was an unassailable exercise of discretion.

[19]In the light of these submissions their Lordships, in disagreement with the Court of Appeal, do not accept that the trial judge exercised a discretion in relation to the evidence which she admitted under s.20(4). The language of her ruling shows that she believed she had no such discretion. The Court of Appeal said they would have exercised discretion, if the judge had not, in favour of admitting the evidence. The question which now arises is whether had she realised she had a discretion, the judge would inevitably have exercised it to admit the evidence.

[20]It is apparent that at trial objection to the admissibility of evidence about the visit to the crime scene was not made when or in the way in which it should have been. Defence Counsel should have raised the matter and sought a voir dire before evidence of the photographs was led. The focus of his complaint should have been not on the photographs but on the circumstances whereby the appellant and the police officers came to the crime scene. Photograph 25, of the appellant pointing at the garbage bin, proved nothing and was therefore irrelevant and inadmissible. Photograph 4 of the appellant pointing at the ground was clearly stage-managed to some extent; no good reason is apparent for taking it; it added nothing to the case; and it should not have been admitted. But the photographs in themselves, were of no significance and their admission in evidence cannot have had any adverse impact on the fairness of the trial or the safety of the jury's verdict. The crucial question, on this first ground of appeal, is whether the evidence of the accused directing the police to the crime scene and the bones was properly admitted in the light of sections 20(4) and 178(1).

[21]The words of s.20(4) are plain. Their Lordships are of the view that they mean what they say, namely, facts discovered as the result of an excluded confession and so much of the confession as relates thereto are admissible. The words of the subsection were not challenged before the Board on the ground of unconstitutionality. Nor, so far as is known, have similar provisions in other jurisdictions been subjected to successful constitutional challenge. But the 1996 Act must be read as a whole and, in particular, s.20(4) read in the light of the over-riding discretion which s.178(1) confers on the trial judge.

[22]In their Lordships' judgment, evidence of the discovery of the bodily remains at the appellant's direction (if the police evidence was accepted), was admissible within s.20(4) notwithstanding the exclusion of the prior written and oral confessions. The judge, in her ruling, made no finding of police impropriety. She expressed doubt about whether the snake-shooting incident had occurred and whether the accused had been told of his constitutional right to representation. Those doubts were sufficient to render the oral and written confessions inadmissible under s.20(1) and (2), as she rightly ruled. Their Lordships are of the view that, had the judge realised that she had a discretion under s.178(1), she would, inevitably, in the absence of any proved impropriety have exercised it in favour of admitting the evidence and so have left it to the jury (as she did) to determine whether the conditions of s.20(4) were satisfied, in that, as the prosecution contended, the deceased's bones were discovered as a result of the appellant's confession. The first ground of appeal therefore fails.

[23]As to the second ground, the alleged admission inappropriately rehearsed by D.S. McCoy was, clearly, potentially damaging to the defence. But the context in which the evidence came to be given and the events which followed it are important. There is no reason to believe that the witness deliberately gave evidence which he knew had been ruled inadmissible. No such allegation was made by counsel at the time. There is nothing to suggest that the trial judge thought this was the case. When D.S. McCoy first gave evidence before the jury about events at the crime scene, he made no mention of the admission. He referred to it only when cross-examined when giving evidence before the jury for the second time following the court's view at the scene. Furthermore, when defence counsel made his submission of no case to answer, he referred to D.S. McCoy having "slipped when he said certain things to the jury".

[24]The critical question is whether, the inadmissible evidence having been given, the judge's failure to discharge the jury rendered the trial unfair or the verdict unsafe. Immediately the answer was given, the judge directed the jury to disregard it. Furthermore, that direction was plainly heeded because the judge, at a later stage, described having seen the jury nod in agreement with her direction. No one suggested at the time that the jury should be discharged. It is true that, during the submission of no case, the judge commented that she would have discharged the jury had the inadmissible evidence been given in chief. Whether she would have taken that view after hearing submissions on the matter, it is impossible to say. Even at that stage, having heard the judge's comment, no counsel suggested that the jury be discharged. Following the judge's direction to disregard it, no further reference to the inadmissible evidence was made during the trial. In the Court of Appeal trial counsel did not argue this ground.

[25]In their Lordships' view, an appellate court, remote from the atmosphere and nuances of the trial process, should be slow to interfere when a trial judge continues with a trial after the jury has heard inadmissible evidence and will not do so merely because it would have decided differently. In this case the judge immediately, and effectively, directed the jury to disregard the evidence; no further reference was made to it; and none of those involved in the trial appears to have thought that the evidence was so damaging that consideration should be given to discharging the jury. The trial was in its third week and all the evidence was completed on the following day. It is clear that the judge thought about what she was doing and must have been satisfied that the jury would be able to return a proper verdict. The local appeal court upheld her decision.

[26]In these circumstances, it is impossible to conclude that the trial was unfair or the verdict unsafe. The second ground of appeal therefore fails.

[27]Their Lordships will humbly advise Her Majesty that the appeal against conviction should be dismissed. The Crown concedes that the mandatory sentence of death cannot stand. Their Lordships will further advise Her Majesty that the appeal against sentence should be allowed, the sentence of death quashed and the case remitted to the Supreme Court of the Bahamas for determination of the appropriate sentence.