Brown v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 07 February 2012 |
| Neutral Citation | [2012] UKPC 2 |
| Date | 07 February 2012 |
| Docket Number | Appeal No 0107 of 2010 |
| Court | Privy Council |
[2012] UKPC 2
Lord Brown
Lord Kerr
Lord Clarke
Lord Dyson
Sir Declan Morgan
Appeal No 0107 of 2010
Privy Council
Appellant
Julian Knowles QC
Mark Summers
(Instructed by Simons Muirhead & Burton)
Respondent
Peter Knox QC
(Instructed by Charles Russell LLP)
Heard on 20 October 2011
On the morning of 28 October 2004, a 76 year old man called Lloyd Bailey was with his wife, Evelyn, in their home in Second Caledonia, Trinidad. An intruder to their home attacked Mr Bailey that day and inflicted dreadful injuries on him from which he subsequently died. The intruder also attacked Mrs Bailey when she intervened in an attempt to protect her husband. Mrs Bailey was then aged 77 years.
Between 3 January 2007 and 7 February 2007, the appellant was tried, before Charles J. and a jury, at the High Court of Trinidad and Tobago, for the murder of Mr Bailey. On 7 February 2007, he was convicted and was sentenced to death (that being the mandatory punishment for murder in Trinidad). On 8 February 2008, the Court of Appeal of Trinidad and Tobago (Archie C.J., John J.A & Weekes JA) dismissed the appellant's appeal against that conviction.
The appellant sought leave to appeal against the Court of Appeal's decision. The Board listed his application for leave as an oral hearing, with the appeal to proceed if the application for leave was successful. In the event, leave was granted and the appeal proceeded.
Mrs Bailey had been seated in a part of the house known as the gallery around 8.30am on the morning of the attack. At that time she heard her husband cry out, " boy! boy!". She made her way to the corridor whence the cry had come and there she saw a man holding a knife to the head of her husband. Blood was streaming from Mr Bailey. Mrs. Bailey ran to her husband's aid and pulled the attacker, trying to get him away from Mr Bailey. The man stabbed her in the forehead. With great fortitude she continued to struggle with him and he struck her with a bench whereupon Mrs. Bailey fell to the ground landing in a seated position. The attacker stood over her and in front of her. She began to scream for help. Her screams were heard by neighbours. Two of these, Marilyn Pierre and Sean Brown, came to the gate of the property and found it locked. Sean Brown climbed over the fence and approached the house. He looked through a window and saw Mrs Bailey on the floor covered in blood.
The prosecution case was that the attacker was still in the house at this time. Sean Brown attempted to gain access to the house but found all the doors that he tried to be locked. He returned to the front of the house and heard an unidentified neighbour shout that someone was running from the house. Mr Brown then observed a man running from the house, wearing a white T-shirt. The man jumped over a fence and fled.
Sean Brown went back to the house and gained entry. He saw Mr and Mrs Bailey. Both were on the floor and they were covered in blood. He then went outside and broke the lock of the gate, allowing Marilyn Pierre to enter. She also entered the house and she saw prints of 'sneakers' in the blood leading through the kitchen and bedroom and blood on the steps outside the house. Since Sean Brown had been wearing work shoes, these prints must have been made by the attacker.
The attacker, according to Mrs Bailey, was dressed in a dark coverall and was carrying a backpack. She claimed that she recognised him. He was, she said, the son of her god-daughter. He had visited her home many times. Indeed, Mrs Bailey said, he had been at the house some two weeks before the attack. On that occasion, he had spoken to her husband. It appeared to Mrs Bailey that he wanted to enter the house but her husband refused him admittance. He had left the curtilage of the house then but had remained in the vicinity for some time afterwards. Mrs Bailey subsequently identified the appellant as this person and as the man who had attacked and killed her husband.
At 9am on the same date police officers were summoned to a place called Morvant. This was not far from the Baileys' home. There they found a crowd of people. Some of the crowd were holding a man. This was the appellant, Nigel Brown. He had been apprehended by some of those present. He appeared to be exhausted and was breathing heavily. He was wearing what were described as "a black jersey and jeans". He was carrying a backpack but no coverall was found.
The prosecution's case on trial was that the appellant had gone to the Baileys' home with clothes in his backpack and that he changed into these after killing Mr Bailey and disposed of the dark coverall which Mrs Bailey had seen him wearing at the time of the attack. Indeed, the prosecution suggested to the jury that the coverall was being disposed of at the time that Sean Brown observed the man in the white T-shirt. When the appellant was subsequently detained he was found to be wearing a white T-shirt under a dark outer garment. On removing the coverall after the killing, the prosecution claimed, the white T-shirt was revealed.
A minuscule amount of blood was found on the white T-shirt and the dark outer garment worn by the appellant. (These were referred to during the trial as 'jerseys'.) The deputy director of the Trinidad and Tobago Forensic Science Centre, Emmanuel Walker, gave evidence that the blood found on the jerseys was insufficient for analysis. Under cross examination he agreed that it was impossible to say whether this was human blood or animal blood. No trace of blood was found on the trousers or sneakers which the appellant was wearing when arrested.
Two days after the killing, on 30 October 2004, Christopher Lewis, a police inspector in the Trinidad and Tobago police force, conducted what is known as a verification procedure involving the appellant and Mrs Bailey. She was taken to a room in Barataria police station where the appellant was seated. Pointing to the appellant, Inspector Lewis asked Mrs Bailey whether the appellant was the man known to her as the son of her goddaughter Margaret Charles. Mrs Bailey looked at the appellant and said, "Nigel, you come in my house and kill my husband". According to Inspector Lewis, the appellant replied, "I only come in to help". Mrs Bailey then left the room. Police Corporal Vidale then cautioned the appellant and, according to the officer, the appellant replied, "I only went to help".
The appellant did not give evidence on his trial. Through cross examination, he denied having been present at the Baileys' house on the date of the attack. He asserted that Mrs Bailey's identification of him as the attacker had been mistaken. He challenged her ability to recognise him, claiming that he had stopped visiting the Baileys' home when he was 11 years' old. He disputed the location of his arrest. He also denied having been present at the Baileys' house on 18 October 2004. And he denied having uttered the words attributed to him at the 'verification' procedure on 30 October 2004.
No challenge was raised to the admissibility of the evidence concerning the bloodstains found on the appellant's jerseys. Indeed, his counsel required the attendance of Mr Walker, whose evidence had been tendered, in order to cross-examine him. The questioning of this witness by the defence unsurprisingly focused on the absence of blood on various parts of the clothing and footwear of the appellant and on the impossibility of identification of such blood as was found on the jerseys.
In the course of her closing address to the jury, counsel for the prosecution said this about the issue of blood:
"…there was blood on the black T-shirt and the white T-shirt. The analyst could not say whether it was animal blood or human blood but it was blood. The analyst never said that it was ketchup; the analyst never said it was red colouring, he said blood. So what we have from the certificate of analysis, blood on the black T-shirt, blood on the white T-shirt. Pure coincidence? Are these coincidences, members of the jury, or is it otherwise? The State is saying that these are so interwoven one into the other that, when taken together, they can lead to the sure conclusion that this accused killed Lloyd Bailey, as Mrs Bailey said he did."
When the trial judge came to deal with the significance of the blood on the jerseys in the course of her summing up she said this to the jury:
"It is entirely a matter for you whether you accept what the defence is saying, through suggestions of counsel in the course of cross examination, or whether you accept what the prosecution say, that is, that there was blood on him. It was insufficient for analysis but there was blood on him".
Although the appellant had no relevant previous convictions, his character was not put in issue by his counsel during the trial. In consequence, a good character direction was not given to the jury.
The prosecution argued before the Court of Appeal that the evidence about the blood staining was in fact beneficial to the appellant in that it enabled the defence on trial to challenge Mrs Bailey on her evidence that the attacker was wearing a coverall. Defence counsel had suggested to her that this was a manufactured account designed to counteract the lack of any evidence of blood staining on the accused's clothing or footwear. The Court of Appeal was not impressed by this argument. At para 13 of its judgment it said:
"Notwithstanding any possible benefit that may have accrued to the appellant from the admission of this blood evidence, we are of the view that its probative force would have been outweighed by its prejudicial value. Forensically, there was no basis on the...
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