Simmons v Queen, The
| Jurisdiction | UK Non-devolved |
| Judge | Lord Brown of Eaton-under-Heywood |
| Judgment Date | 03 April 2006 |
| Neutral Citation | [2006] UKPC 19 |
| Court | Privy Council |
| Docket Number | Appeal No 33 of 2005 |
| Date | 03 April 2006 |
[2006] UKPC 19
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Woolf
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Brown of Eaton-under-Heywood]
On 5 April 2002, after a trial lasting just under four weeks before Allen J and a jury, these two appellants were each convicted of the murder, on 16 October 1997, of Perry McKellan Munroe (a police officer) and of housebreaking, contrary to sections 312 and 383 respectively of the Penal Code (Cap. 77), and were sentenced to death. On 13 April 2004 the Court of Appeal of The Bahamas (Sawyer, P, Ganpatsingh and Osadebay JJA) dismissed their appeals against conviction; they had not appealed against sentence. They now appeal to the Board by special leave (granted to Simmons on 17 November 2004 and to Greene on 12 December 2005) not only against their convictions but also against the mandatory death sentence to which each was subject.
Conviction
The principal ground of each appellant's appeal against conviction concerns the judge's decision following a lengthy (six-day) voir dire to admit his confession statement into evidence against him. That being so, it is convenient to begin by summarising the nature and effect of the Crown's evidence against the appellants, their confession statements aside. What follows, therefore, is a summary of the case established against the appellants independently of their admissions.
The appellants are cousins, at the time of Munroe's killing in their early twenties (Simmons the elder of the two), living together in a house in Nassau. On the morning of 16 October 1997 they flew together from Nassau to Mangrove Cay, Andros (a small island with a population of roughly a thousand inhabitants, a twenty-minute flight from Nassau) where their uncle (Mr Kelly Greene) owned a restaurant – the Fisherman's Club at Little Harbour. The uncle was away at the time in Nassau. On arrival at Mangrove Cay both appellants were recognised at the airport by several people who knew them (including Constable Rolle, one of only two police officers on the island, the other being Constable Munroe), and Greene was seen to collect a large black bag measuring three or four feet (described by another witness as a medium-large black or blue bag measuring about two feet) from the airport baggage cart. Both men then walked off together in the direction of Little Harbour.
At about 7.45 pm that night the lights in the Fisherman's Club were seen to be on and, Mr Kelly Greene being known to be away, the police were alerted. Constables Rolle and Munroe and a number of civilians went to the club, Constable Rolle going to the rear of the building, Constable Munroe to the front. Constable Monroe told those inside to come out as they were surrounded. Three shots were then fired from a twelve-bore Maverick pump action shotgun, two of which struck Constable Munroe in the head and killed him. The shotgun was licensed to Simmons. No other gun was fired that night. Greene (wearing white gloves) was apprehended at the club by Constable Rolle but ran off when the shots were fired and the officer went to look for Munroe.
A short time later Greene was seen in the Pinder's Bay area by another prosecution witness he knew, Floyd Rolle. Greene said that he had lost his mobile phone and Floyd Rolle said that he would help him look for it. As they walked along together Greene said that he "hope that Munroe isn't dead, you know" and, when asked what he meant, replied, "me and my spar [partner] going to rob Kelly and Munroe got shot". They continued along the path together until another person, in dark clothing with a mask over his face and white gloves, appeared. Green called out to him "Spar, hands up". Floyd Rolle saw this person put something down ("an instrument") and move towards them. He was frightened and ran away.
Later that night a small boat went missing from its mooring at Little Harbour; two days later it was found at South Beach Canal, not far from the appellants' house in Nassau. Also found after the killing was a black duffle-type bag near the beach at Little Harbour and, on 17 October 1997, in bushes near the appellants' house, Simmons's Maverick shotgun with its barrel missing. By then, however, the appellants had fled the Bahamas, flying via Miami to Omaha, Nebraska where they remained for something over three years. Finally, on 27 March 2001, they were deported from Nebraska and, accompanied on the flight by US law enforcement officers and Detective Sergeant Thompson of the Bahamian police, they arrived at Nassau Airport. There, at about 3 pm, each was arrested by DS Thompson, cautioned, and told of his right to obtain legal advice.
Such was the background against which the appellants' confession statements came to be taken, Greene's at about 5 pm that afternoon, Simmons's at about 6.40 pm.
Before turning to the particular circumstances in which the admissibility of those statements into evidence is challenged, their Lordships would summarise their substance as follows:
(a) Greene
Greene said that he had flown into Mangrove Cay that morning (16 October 1997) with Simmons, spending the day together on the beach and, as night fell, "we talked about robbing our Uncle Kelly of some stuff. I think he had some cocaine or some marijuana at the time. And after a bit we were searching and we heard people saying 'You're surrounded'. I see about five people….. I know it was the cops … My cousin kick the back door open, he jumped out with his rifle, his gun, whatever and he ran in the direction right and I ran left." He said that Constable Rolle had taken hold of him some ten to fifteen yards outside the club and only then had shots been fired at which point Constable Rolle let go of him and went off to look for Constable Munroe. Greene himself ran off and later saw Simmons who "pumped the rifle and asked who I was". When Greene answered, Simmons said "I thought you was caught". They then escaped by boat to Nassau arriving there at about 5.30 am whereupon they were told by members of their family of Constable Munroe's death. They collected their passports, got a lift to Paradise Island airport (where there was less risk of being observed by the police) and flew to the United States, first to Miami and then on to Nebraska.
(b) Simmons
Simmons said that after flying to Mangrove Cay they waited until dark and then:
"We went through a window into my Uncle Kelly Greene's restaurant and then we began searching for money and drugs. At the time, let me say I rest my shotgun down which was disarmed, meaning there was no bullet in the chamber and I had my safety on…. My cousin Robert said we surrounded so I jumped down and I noticed there was a lot of people outside …. one person said 'we got you all' … I ran to the west door and there was some people holding the door. I had to push then I kicked the door … When I came out I aimed my gun up to - you know it was so much people. I just wanted to scare them so I could like have an avenue to run. At the time when I did my gun did not fire. I realised that my safety was still on and no shots in the barrel. So I took the safety off and I pump it. After I pump it, I looked back to figure where my cousin was. When I looked back, I looked at him. I said what you still doing in here? You supposed to be gone. He had agreed that we would just run out there."
He said that he could not see properly because he had a mask on but no eyehole. The person in front of him had his left hand raised up. He saw a flash go off. He felt his gun go off. He then ran off and became disoriented. He took the barrel off his gun and threw it away. Later he met up with Greene and they took a boat to Nassau before catching a plane to the United States. He left his gun near the house. He said he didn't go to Andros to hurt anyone, "just to take the money and the drugs."
Their Lordships would further note at this stage that, the confession statements having gone before the jury, Greene gave evidence on oath, accepting the truth of his statement and giving evidence consistently with it. In addition he stated that he had first become aware that Simmons had a gun when he (Simmons) kicked the door open and ran out. He never believed that anyone would be harmed or shot. He never saw Simmons shoot anyone. In cross-examination he accepted that he probably carried a black bag on leaving the airport; it belonged, however, to Simmons and he did not know what was in it. He said that at the Club Simmons had got in through the window and opened the side door for him to enter. He never saw the gun in Simmons's hands; he did not know where it had come from.
After Greene gave evidence Simmons made an unsworn statement from the dock. For the most part he spoke of the circumstances in which he had come to make his confession statement on 27 March 2001. All he said of the events of 16 October 1997 was:
"I did not shoot anyone. I had no intentions of shooting anyone or killing anyone on October 16, 1997".
There is no dispute that the jury were correctly directed upon the law. Indeed the summing up as a whole is conspicuous for its fairness and accuracy. The Crown's case was, of course, that Simmons killed Constable Munroe whilst he and Greene were engaged upon a joint enterprise. For Simmons to be convicted of murder the jury had to be sure that when he shot the officer he did so intending to kill him – an intention to cause grievous bodily harm is not enough in the Bahamas. For Greene to be convicted of murder the jury were directed that they had to be sure first, that there was an agreed plan to commit housebreaking, secondly that Greene knew from the outset that Simmons...
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