Moss v The Queen [PC]
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 13 November 2013 |
| Neutral Citation | [2013] UKPC 32 |
| Date | 13 November 2013 |
| Docket Number | Appeal No 0021 of 2010 |
| Court | Privy Council |
[2013] UKPC 32
Privy Council
Lord Mance
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
Appeal No 0021 of 2010
Appellant
Francis FitzGibbon QC
Sarah Elliott
(Instructed by Simons Muirhead & Burton)
Respondent
Thomas Roe
(Instructed by Charles Russell LLP)
Heard on 22 October 2013
The appellant Dominique Moss was convicted by the jury after trial of the murder of a woman by cutting her throat. He was sentenced to death. On appeal, the Court of Appeal of the Bahamas quashed the conviction for murder and substituted a conviction for manslaughter. The Court of Appeal went on to re-sentence the defendant for the manslaughter and imposed a sentence of 25 years. It did so, however, without giving the defendant any opportunity to make submissions as to the length of sentence. It is that omission which forms the principal ground of the present further appeal to the Board against sentence. An application for leave to appeal further against the substituted conviction for manslaughter was refused by the Board.
In the small hours of the morning the defendant and his co-accused Lotmore had taken the woman victim from a bar and onto a golf course with the object of having sexual intercourse with her. There was evidence that she was reluctant to go. Her body was found the next morning in standing water on the course. Her throat had been cut to the extent that her head was almost severed from her body. There were signs of sexual assault. In police interviews Moss and Lotmore each asserted that the other had killed her. At trial Moss altered his account. He admitted that he had intended to have intercourse with the deceased but said that he had been unable to do so, whereupon Lotmore had taken her away and returned alone. Subsequently, he said, he had gone back to the golf course and found the body. That, he said, explained blood found on his clothes. He purported, however, to exonerate Lotmore, in sharp contrast to what he had said to the police. For his part, Lotmore gave, both to the police and at trial, an account of Moss killing the deceased in front of him. He asserted that he had tried to stop him. The jury convicted Moss of murder. It acquitted Lotmore of murder but convicted him of manslaughter. Given the way the case was argued and left to the jury, it must have found that it had been Moss who cut the throat of the deceased and it cannot have been sure that Lotmore was either a principal or secondary party to murder. It must have rejected that part of Lotmore's evidence in which he asserted that he had tried to stop the killing, and have found that he was a party to, at least, an assault on the deceased, with foresight that she might be done some harm.
There had been some evidence that Moss was drunk. This might possibly have been relevant to the question whether Moss had formed the specific intent required for murder, which, in the Bahamas, is an intention to kill and nothing less. However, the trial judge had altogether omitted to deal with the possible relevance of drink in his summing up. It was on the ground of this misdirection that the Court of Appeal quashed Moss's conviction for murder, together with the death sentence which had been imposed in consequence, and substituted a conviction for manslaughter.
The principal submission of Mr FitzGibbon QC for Moss is that it is a fundamental breach of natural justice to pass sentence without giving a defendant the opportunity to be heard. He makes subsidiary submissions that the sentence of 25 years is, on the facts of this case, manifestly excessive both generally and in particular because the sentence imposed by the trial judge on Lotmore was one of six years. For the Crown, Mr Roe accepts that it should ordinarily be the practice of a criminal court to receive submissions as to sentence on behalf of a defendant before fixing his punishment, and that the Court of Appeal ought to have done so in this case. He contends, however, that in this case such submissions could not have achieved any shorter a sentence, and invites the Board to dismiss the appeal for that reason.
The Crown's concession on the point of principle is clearly realistic. It is elementary that, at least where the sentence is not fixed by law, a criminal court has a duty to give a defendant the opportunity to be heard, through counsel or otherwise, before sentence upon him is passed. That is so however little there may appear to be available to be said on his behalf. As Megarry J memorably put it in John v Rees [1970] Ch 345, 402:
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely...
To continue reading
Request your trial
-
HT v The Queen
...Gaudron JJ; Burrell v The Queen (2008) 238 CLR 218 at 226 [28] per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ; Moss v The Queen [2013] 1 WLR 3884 at 3887 [5] per Lord Hughes JSC for the Privy Council; DL v The Queen (2018) 92 ALJR 764 at 772 [39] per Bell, Keane, Nettle, Gordon and E......
- Gomes v Republic of Trinidad and Tobago
-
Owen Clunie v General Legal Council
...ought to have been afforded the opportunity to address the committee as regards penalty. The reasoning in Dominique Moss v The Queen [2013] UKPC 32 is apt. In delivering the judgment of the Board, Lord Hughes said: ‘It is elementary that, at least where the sentence is not fixed by law, a c......
-
Ray Morgan v The King
...no benefit from the exercise. In support of that countervailing criterion Mr Pennington-Benton relied on the dictum of Lord Hughes in Moss v The Queen [2013] UKPC 32; [2013] 1 WLR 3884, at para 8. In Moss v The Queen, the Court of Appeal of the Commonwealth of The Bahamas had quashed the ......