Tido v R

JurisdictionUK Non-devolved
JudgeLORD KERR
Judgment Date15 June 2011
Neutral Citation[2011] UKPC 16
Date15 June 2011
Docket NumberAppeal No 0003 of 2010
CourtPrivy Council
Maxo Tido
(Appellant)
and
The Queen
(Respondent)

[2011] UKPC 16

before

Lord Rodger

Lord Brown

Lord Kerr

Lord Clarke

Lord Dyson

Appeal No 0003 of 2010

Privy Council

Appellant

Julian Knowles QC

(Instructed by Simons Muirhead & Burton)

Respondent

Peter Knox QC

Tom Poole

(Instructed by Charles Russell LLP)

LORD KERR
1

On 20 March 2006 in the Supreme Court of the Bahamas, after a trial before Allen J and a jury, the appellant was convicted of the murder of Donnell Conover. Following a sentencing hearing on 20 April 2006, the judge sentenced the appellant to death. On 14 October 2008 the Court of Appeal of the Bahamas (Sawyer P, Ganpatsingh and Osadebay JJA) dismissed the appellant's appeal against his conviction. His appeal against sentence was also dismissed.

2

On 9 December 2009 the appellant sought special leave to appeal to the Judicial Committee of the Privy Council. This was granted on 26 February 2010.

The facts as they emerged from the evidence at the trial

3

On the night of 30 April 2002 a young woman called Donnell Conover attended a political rally with her family. She was sixteen years old. She and other members of the family returned home at about 12.15am. Mrs Laverne Conover, Donnell's mother, went to bed shortly after that, leaving her daughter sitting at the dining room table reading a political manifesto that had been obtained at the rally.

4

Mrs Conover woke the following morning at about 7.15 am. Donnell was missing. Her night dress was found on top of a freezer in the house. A cordless telephone was in the porch of the family home. Mrs Conover checked the telephone and noted from the caller identification system that a call had been received from Mandingo's Restaurant at about 1.20 am. This restaurant was in Nassau Village. Another call had been received at 1.45 am but this was recorded on the system as being from "out of area".

5

The prosecution's case was that at about 1.20am the appellant telephoned Miss Conover from Mandingo's Restaurant and that, after that telephone call, she had left her family home and had gone to meet him. Miss Conover's body was found later that day between 12.30pm and 1pm in a quarry pit next to a road known as Cowpen Road. She had suffered severe head injuries. Evidence was given that these could have been caused by her being struck by a hard object such as a rock or that they could have been the result of a car being driven over her head. Her body had been set on fire, and when it was discovered it was found to have been partially burnt.

6

One of the principal witnesses for the prosecution was Lavette Edgecombe. She worked at - and was part owner of - Mandingo's Restaurant. She gave evidence that at about 1 am on 1 May 2002, a man entered the restaurant and asked to use the pay phone. She described him as being about 5' 4" tall, of medium build, and having a dark complexion. This man had what the witness described as a 'low hair cut'. When the man was permitted use of the telephone, Ms Edgecombe kept him under close observation because the lock on the telephone had been broken and she was on the alert to ensure that money was not removed from it. She overheard part of the telephone conversation. She said that the man identified himself to the person whom he had called by the nickname 'Scum'. In the course of the telephone conversation, this man said to the person to whom he was speaking on the telephone words to the effect, "Come outside; I coming for you". He also told that person that he would be driving a white truck.

7

Ms Edgecombe continued to observe the man throughout the two to three minutes that the telephone conversation lasted. He was about five feet away from her. She described lighting conditions in the restaurant as "pretty bright". After the man had finished the telephone call, Ms Edgecombe watched him leave the restaurant and jump into the passenger side of a white truck. She identified this as a "Chevy" truck.

8

On 2 May 2002 Ms Edgecombe identified to police officers the man who had made the telephone call the day before. This identification took place in Mandingo's restaurant. The witness also said that she had seen the man in the restaurant on a couple of occasions before 1 May. On each of these occasions she had observed him for some ten to twenty seconds.

9

Ms Edgecombe was permitted by the trial judge to make a dock identification of the appellant as the man who had made the telephone call on the morning of 1 May 2002 and who had identified himself as 'Scum'.

10

Two witnesses (Derrick Bastian and his girlfriend, Vanda Ford) gave evidence that late in the evening of 30 April 2002 (Bastian said between 9 to 10pm, Ford 10.50 pm) the appellant was in a car which pulled up alongside them while they were in Bastian's white Chevrolet truck. He asked Bastian if he could borrow the truck "because he had something important to do". Bastian agreed to lend the appellant the truck so long as it was returned the following morning. The appellant then drove off in the truck. He returned it at about 8 am on 1 May 2002. During the cross-examination of Ms Ford, it was put to her that the appellant had not borrowed the truck; and in the course of Bastian's cross-examination, it was suggested that Bastian himself was the person who had driven the truck to Mandingo's. Both denied these claims.

11

Bastian had taken the truck for repairs to a garage owned by Andrew Curry on the day that it was returned by the appellant. Police officers collected it from Mr Curry's garage on 9 May 2002. They found what appeared to be bloodstains in a number of areas including the lower panel of the passenger door. Swabs were taken of these areas for later forensic analysis. In the meantime, on the same date, 9 May 2002, after the truck had been inspected, but before tests had been carried out on the suspected blood samples, Detective Sergeant Ferguson interviewed the appellant. According to this police officer, the appellant admitted knowing Miss Conover. He also admitted having been in possession of the truck from between 11.30pm on 30 April and 7.45 am on 1 May. He said that, after he had borrowed it, he had stopped at a few places, and had then gone to see his girlfriend, Deanne Miller, at around 12.30 am. He had stayed with her for four hours and they had sex before he returned home. He denied that he had picked up or killed the deceased.

12

It was Detective Sergeant Ferguson's evidence that he asked the appellant to provide intimate samples but Mr Tido refused this request. During cross examination of this police officer it was suggested to him that he had fabricated the contents of the interview and that he had not asked the appellant to provide intimate samples. The detective sergeant rejected these suggestions.

13

The only bloodstains found capable of analysis were those on the passenger door panel. It was established that the blood from these traces was that of Donnell Conover.

14

Deanne Miller gave evidence that at the time of Miss Conover's murder she had been the appellant's girlfriend for two years. She knew him by the name "Scum". She testified that the appellant did not have sex with her on 1 May 2002. She was unable to recall whether she had seen him between midnight and 5 am on that day.

15

The appellant made an unsworn statement from the dock. He said that on 30 April 2002 he attended a political rally. He left this at about 10 pm and went home. The following night he went to a rally at Clifford Park, and spoke to his girlfriend, Deanne. He said that he had not slept with her on the night of 30 April/1 May, contrary to the suggestion that Detective Sergeant Ferguson had made about his admissions at interview. He denied that he had said the things attributed to him by DS Ferguson. He also said that he had not borrowed Bastian's truck and he had not gone to Mandingo's restaurant in the early hours of the morning of 1 May. He did not recall having known the deceased but he denied that he had killed her.

The case for the appellant

16

For the appellant Mr Knowles made two principal submissions. The first was that the judge should not have permitted a dock identification by Ms Edgecombe. Alternatively, it was contended that the directions given by the judge in relation to the identification were deficient. The second main argument was that the murder of Miss Conover was not one that fell within the wholly exceptional category of killing that warranted the imposition of the death penalty. Again this argument was supplemented by a subsidiary, alternative submission. It was to the effect that before the sentence of death could be imposed, the judge ought to have ordered that a psychiatric report on the appellant be obtained, principally for the purpose of determining whether there was any reasonable prospect of reform. Finally, it was argued that the Court of Appeal in the Bahamas had adopted a different test for the imposition of the death penalty from that prescribed by various decisions of the Judicial Committee of the Privy Council.

Dock identifications

17

Dock identifications are not, of themselves and automatically, inadmissible. In Aurelio Pop v The Queen [2003] UKPC 40 the Board held that, even in the absence of a prior identification parade, a dock identification was admissible evidence, although, when admitted, it gave rise to significant requirements as to the directions that should be given to the jury to deal with the possible frailties of such evidence - see paras 9 et seq. In particular, the Board considered in that case that the failure to adhere to what was the normal practice in Belize of holding an identification parade should have led the judge to warn the jury of the dangers of identification without a parade. Delivering the advice of the Board, Lord Rodger of Earlsferry said at para 9:

"[The...

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