Caryn Moss v The King
| Jurisdiction | UK Non-devolved |
| Judge | Lord Stephens |
| Judgment Date | 25 July 2023 |
| Neutral Citation | [2023] UKPC 28 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0016 of 2021 |
[2023] UKPC 28
Lord Lloyd-Jones
Lord Leggatt
Lord Stephens
Lady Rose
Lord Richards
Privy Council Appeal No 0016 of 2021
Privy Council
Trinity Term
From the Court of Appeal of the Commonwealth of The Bahamas
Appellant
Paul Bowen KC
Murrio D Ducille
Allan Cerim
Odette Chalaby
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Rowan Pennington-Benton
Adam Riley
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 10 May 2023
The appellant, Caryn Moss, was tried and convicted on a charge of conspiracy with others to murder O'Neil Marshall (“the deceased”) contrary to section 89(1) and section 291(1)(b) of the Penal Code, Chapter 84, as amended by the Penal Code ( Amendment) Act 2011 (“the Code”). Bethel J, the trial judge, imposed a sentence of 20 years' imprisonment less one year spent on remand. The appellant appealed against her conviction and sentence to the Court of Appeal of the Commonwealth of The Bahamas and the Director of Public Prosecutions cross-appealed against the sentence as wrong in principle and unduly lenient.
The principal issues on the appeal against conviction were: (a) whether the trial judge had misdirected the jury that duress was not a defence to the offence of conspiracy to murder and (b) whether on the facts the defence of duress ought to have been, but was not, left by the trial judge to the jury. The Court of Appeal in a judgment delivered by Evans JA, with which Crane-Scott and Jones JJA agreed, (SCCrApp & CAIS No. 230 of 2018) dismissed the appeal against conviction finding (a) that the trial judge was not wrong to direct the jury that the defence of duress was not open to the appellant on a charge of conspiracy to murder where the murder was actually committed; and (b) that the defence of duress did not arise on the facts of this case. The Court of Appeal also dismissed the appellant's appeal against sentence.
In relation to the cross-appeal by the Director of Public Prosecutions (SCCrApp & CAIS No. 238 of 2018), the Court of Appeal held that the trial judge had erred in principle by failing to adhere to the sentencing guideline of 30 to 60 years' imprisonment in circumstances where the trial judge had found there to be no extenuating circumstances. The sentence of 20 years' imprisonment was found to be unduly lenient and was set aside. The Court of Appeal imposed a sentence of 35 years' imprisonment to take effect from the date of conviction, less the time spent on remand.
The appellant now appeals to the Board against both conviction and sentence.
In relation to the appeal against conviction, the appellant maintains that duress is a defence to the offence of conspiracy to murder and on the facts that the defence ought to have been left to the jury. However, at the start of the hearing the Board indicated that it would assume, without deciding, that duress was a defence to conspiracy to murder and invited submissions on the question whether – assuming, without deciding, that duress is a defence to conspiracy to murder — the defence ought on the facts to have been left to the jury. If the answer to that question is “no”, then the Board considers that the question whether duress can in law be a defence to conspiracy to murder should be determined in a case in which it arises on the particular facts.
In relation to the appeal against sentence, the appellant's principal submission is that, even if duress did not afford her a defence, the Court of Appeal failed to take into account the mitigating factor that the appellant had been subjected to coercion.
The prosecution case against the appellant was based on her statement to the police made after caution (“the statement”) together with her answers during police interview. The appellant did not give evidence at her trial and therefore the following factual background is largely taken from the statement and from her answers. The Board sets out the statement in full in the appendix to this judgment.
The deceased, sometimes referred to as “Yardy” or “OJ”, was murdered at some time between Saturday 30 April 2016 and Sunday 1 May 2016. At the time of his death, he was in a witness protection programme as he was due to give evidence for the prosecution in a forthcoming trial in which “a notorious leader of a gang” was charged with murder. The appellant admitted in her police interview that she knew that the deceased was a witness in a murder case as she had been told this by him.
There was a plot to murder the deceased because he was to give evidence for the prosecution. In her police interview, the appellant admitted that she was aware of the plot. She also admitted that she knew the deceased. No doubt this was the reason why those plotting to murder the deceased approached the appellant to induce her to set him up to be killed. In the statement, the appellant recounted how she had been approached from around December 2015 by three persons, whose approaches were based on the appellant's association with the deceased.
The first approach was by Ramon Sweeting, known as “Razor”. In the statement the appellant described the approach by Razor as follows:
“The first person approach me was ‘Razor’. He asked me, ‘Boss lady, do you want to live large? Why don't you show me where your boy stay at.’ I then asked who, and he said ‘Yardy’. He said I can make $200,000 if I let him know where he lives. I told him I would think about it.”
The appellant recounted in the statement that after that approach she let the deceased “know what was happening” and that both she and the deceased took the precaution of removing from social media all pictures which showed them together.
The second approach was by “Carlton”. In the statement, the appellant described the approach by Carlton as follows:
“Later on another guy name Carlton approach me. He then asked me what I was dealing with, if I'm ready to snitch out your boy out (sic) yet then everything would be safe on my end. I told him I would think about it.”
The appellant does not say in the statement whether she let the deceased know of this approach.
The third approach was by Jamaric Green, known as “Big Meech”. In the statement the appellant described the initial approach by Big Meech as follows:
“The last person approach me about it was a guy name ‘Big Meech’. He asked me if I'm ready to deal with ‘Yardy’ yet and he also told me I can make $200,000. I told him I would think about it. He told me that he understands that I knew where ‘Yardy’ is and everything would be okay on my end once I work with him. I then told him I would see. We exchanged phone contacts. I no longer thought about it ….”
The appellant recounted in the statement that after that approach she “let ‘Yardy’ know again that they were still looking for him”. She also stated that she “wrote down the licence plate [of Big Meech's car] and sent it to [her] sister in case anything was to happen to [the appellant]”.
The appellant recounted in the statement that, after the initial approach by Big Meech, she “stopped answering Big Meech calls”. However, she also recounted that she and Big Meech started texting but that “he didn't mention Yardy anymore”.
Rather, Big Meech “mention us throwing a party” which she never followed up on as she “figured he just wanted to kill [her]”.
In April 2016, the deceased was detained in prison. In the statement, the appellant recounted how she learnt that the deceased was in prison. She stated that she went to Harvey's Bar to check on the deceased and “a guy by the name of Braiden told her that he ‘was locked up’”. She recounted that this sounded weird to her so she went to Cable Beach Police Station to make sure he was locked up.
After the deceased was released from prison, the appellant recounted in the statement how the deceased “went by Braiden those and simply just told him to take his time on the road”.
In the statement the appellant then recounts how, on what the Board understands to have been about the Wednesday or Thursday before the deceased was murdered, “she went by Harvey's [Bar] to get something to smoke” but went instead to Braiden's yard. She stated that in Braiden's yard she saw Big Meech and Braiden sitting down talking and that she went over to them. She stated that Big Meech and Braiden were discussing ways “to line up” the deceased and that Big Meech said “this would be the perfect time to light him up”. The appellant recounted that Big Meech explained that as the deceased “just got released out of jail” “that would be the alibi people saying they saw [the deceased] out because he was suppose to be in Jamaica”. The appellant also recounted in the statement that Braiden then said “Yeah, man, that's perfect”. After hearing this conversation between Big Meech and Braiden, the appellant stated that she walked away. The appellant does not recount in the statement that she let the deceased know of this conversation between Big Meech and Braiden in which they were planning to kill him.
The appellant recounted in the statement that the next contact between her and Big Meech occurred on a Saturday morning, which the Board understands to be the morning of Saturday 30 April 2016. She stated:
“Saturday morning ‘Big Meech’ called me and told me he needed to see me asap. So I directed him by my house where I felt safe. I never let him in the yard and he stayed outside by my gate.”
Whilst Big Meech was outside her gate, the appellant received a call from her mother who asked the appellant to go to the airport to pick up office keys. Big Meech then drove the appellant to the airport. The appellant recounts in the statement that:
“As we were driving he then threatened me saying that I'm already in it, I already know what's...
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