Shavargo Mcphee v The Queen (Bahamas)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 24 October 2016 |
| Neutral Citation | [2016] UKPC 29 |
| Date | 24 October 2016 |
| Docket Number | Appeal No 0040 of 2015 |
| Court | Privy Council |
[2016] UKPC 29
Lady Hale
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Hughes
Appeal No 0040 of 2015
Privy Council
From the Court of Appeal of the Commonwealth of the Bahamas
Appellant
Edward Fitzgerald QC Amanda Clift-Matthews (Instructed by Simons Muirhead & Burton LLP)
Respondent
Navjot Atwal (Instructed by Charles Russell Speechlys LLP)
The appellant was convicted of murder in the course of armed robbery. The case against him consisted principally of the evidence of an accomplice together with an apparent written confession to the police. His appeal to the Court of Appeal, and now to the Board, centres upon whether the confession ought to have been excluded.
The robbery was carried out at a food store on Abaco by two men, each armed with a handgun, in the late afternoon of Thursday 27 November 2008. They demanded the contents of the till from the cashier. He did not co-operate and was chased from the shop into a rear storeroom where he was shot. The two gunmen escaped with the contents of the till, estimated by the storeowner at about $1300. Later, with the help of the accomplice, Edgecombe, the police recovered two handguns, one 9mm and the other a .38. Four spent ammunition casings were found in the vicinity of the body in the storeroom. They were matched to the recovered guns; three came from the .38 and one from the 9mm. The deceased cashier had two gunshot wounds, apparently both sustained at close quarters. One was a graze across the right chest. The other, which was the cause of death, entered the left lower abdomen and traversed the body, exiting in the area of the right shoulder blade.
The Crown prosecution case was that the two gunmen were the appellant and a friend Rahming. They both lived in Nassau and had apparently travelled to Abaco the day before the robbery. They were arrested together at the airport when about to leave for Nassau on the morning after the robbery (Friday 28 November). The two of them were tried, initially, together with others said to have been implicated in the offence, one of whom was the accomplice witness Edgecombe ("CJ"). Edgecombe asserted that he had driven the two of them to and from the robbery, and had disposed of the guns and some clothing after it. He became a prosecution witness during the course of the trial and the Attorney General offered a nolle prosequi in his case. Two other defendants, Russell ("Timer") and Mills, were not alleged to have been at the scene but were indicted on the basis of alleged complicity in the planning of the offence and/or of helping to transport and accommodate the two gunmen beforehand. The Crown abandoned the case against Mills during the trial. Russell was acquitted by the jury. Rahming absconded shortly before the end of the trial and was convicted in his absence.
Apart from the evidence of Edgecombe, the case against the appellant consisted of oral admissions and a written statement under caution said to have been made to the investigating police officers on the afternoon of the second day of their detention (Saturday 29 November). At the trial a challenge to the admissibility of these confessions was intimated (and the same applied to the case of Rahming). A voir dire ensued. The case mounted for both men was that they had been tortured on both the first and second days of detention. This appellant contended through counsel and in an unsworn statement from the dock that after being made on the first day to sit on the floor handcuffed and threatened with violence, he had, on the second, been repeatedly "tazered" whilst his face was encased in a towel and his head covered by a plastic bag, and beaten with a piece of 4" x 2" timber, with a towel wrapped around it. Rahming was also similarly beaten in front of him, he said. It was, he said, as a result of this treatment that he had made the admissions.
Neither the appellant nor Rahming elected to support this account by sworn evidence in the voir dire, although both made unsworn statements from the dock. The principal police officers concerned gave evidence before the judge and were energetically cross-examined. The judge rejected the account of torture on the facts, as the jury must have done when it was renewed before it. That this case was rejected is unsurprising, if only because the appellant's oral and written admissions were made in front of a local pastor, Bishop Henfield, who treated him kindly and against whom no complaint was made, but to whom no suggestion whatever was made by the appellant of the grave mistreatment later alleged, even though if it had occurred it would have happened just before his arrival. Further, the appellant's first account, to the effect that the record of oral questions and answers and the written statement under caution were presented to him ready-written, was directly contradicted by the Bishop. The Board has not been asked by the appellant to go behind the findings of the judge in relation to the allegations of torture, and it would be very unusual for it to be prepared to do so in the absence of some compelling evidence not put before the court of trial, together with a convincing explanation for it not having then been adduced. The case of the appellant depends on other circumstances surrounding his detention and questioning which, although in part adverted to before the judge, were obscured by the florid allegations of torture.
The case for the appellant as presented to the Board by Mr Fitzgerald QC relied upon the following aspects of the appellant's detention:
(i) he was, and was known to be, a minor, being aged 17 years and six months at the time of his arrest;
(ii) although the police asked for and obtained from him two telephone numbers where his mother might be contacted in Nassau, no contact with her was in fact made and he confessed without the support of any relative or friend and without any such person being made aware of his whereabouts and that he was detained on suspicion of murder;
(iii) nor was he at any stage represented by a lawyer;
(iv) nor was there any appropriate adult present; there was no adult to concern himself with the interests of the appellant until the Bishop was brought in immediately before the confession was made, and even then the Bishop was not properly apprised of the role which an appropriate adult has when a juvenile is in detention;
(v) he was in detention for some 31 hours before the confession was made; moreover it defied belief that there had not been extensive questioning in this period;
(vi) he had been without food and drink since 1950 the evening before, thus for some 20 hours prior to the confessions beginning at about 1600.
In those circumstances, Mr Fitzgerald submits that the only proper conclusion is that the Crown had not proved to the criminal standard that the confession was voluntary, in the sense that it was obtained without oppression or as a result of anything said or done which rendered it unreliable (section 20(2) Evidence Act). In the alternative, he submits that the only proper conclusion which a court could reach is that the admission in evidence of the confession had to be excluded as unfair pursuant to section 178 of the same Act.
The central rule in the Bahamas, as elsewhere in the common law world, is that the confession of an accused person is admissible evidence against him providing that it was made voluntarily. A confession is not voluntary if it was obtained by oppression, nor if it was obtained as a result of anything said or done which renders it unreliable. If either possibility is raised, it is for the Crown to show that the confession was not obtained in circumstances in which either applied. These central propositions are not in doubt and are expressly laid down in section 20(2) of the Evidence Act.
Section 20(2) and voluntariness apart, the judge in a criminal trial has, by section 178 of the same Act, the power to exclude evidence on which the prosecution proposes to rely to be given if it appears to him 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 effect on the fairness of the proceedings that the court ought not to admit it. It is well established, and was not in dispute before the Board, that breaches by police interrogators of Codes of Practice and similar standards of behaviour are relevant to whether this power should or should not be exercised in relation to evidence resulting from interviews with suspects. As it was put in the Board's judgment in Peart v The Queen [2006] UKPC 5; [2006] 1 WLR 970, 668 WIR 372, para 24, the criterion for admission of a statement [of confession] is fairness. A breach of proper practice does not necessarily result in unfairness such as to justify exclusion; it must be judged in the context of all the circumstances, foremost amongst which are its gravity and its consequences. A deliberate or reckless breach is plainly more serious than an accidental one.
Any arrested person is entitled under section 19(2) of the Constitution of the Bahamas to instruct without delay a legal representative of his own choice and to hold private communication with him. If an arrested person is under 18, he is additionally entitled under the same section to be afforded a reasonable opportunity for communication with his parent or guardian. These two constitutional rights are reflected in express provisions in the Police Force Standing Orders at para 17 of section C4. Those Orders go further because para 20 requires the police, when a minor such as the appellant is in custody, to contact an appropriate adult as soon as practicable and to ask him or her to come to the police station. An...
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