Todd v The Queen (The Bahamas)
| Jurisdiction | UK Non-devolved |
| Judge | Sir Christopher Rose |
| Judgment Date | 08 April 2008 |
| Neutral Citation | [2008] UKPC 22 |
| Date | 08 April 2008 |
| Court | Privy Council |
| Docket Number | Appeal No 95 of 2006 |
[2008] UKPC 22
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Mance
Sir Christopher Rose
[Delivered by Sir Christopher Rose]
The appellant appeals by special leave of the Board, given on 22 nd November 2006. Following a 4 week trial in the Supreme Court of the Bahamas, before Dame Joan Sawyer CJ and a jury, he was convicted on 23 rd January 1998, of the murder of the deceased, Venette Bellizaire, in 1994. He was sentenced to death. On 16 th December 1999 the Court of Appeal of the Commonwealth of the Bahamas (Carey P, Zacca and Hall JJA) dismissed his appeal.
The deceased was killed some time after 6.30am on 25 th August 1994, when she was seen getting into a uniquely distinctive Nissan motor car which belonged to Otis Palmer. Mr Palmer gave evidence that he lent the car to the appellant between 9pm and 10pm on 24 th August and he returned it at about 8am on 25 th. Mr Palmer's girlfriend Margaret Barr gave evidence that the car was missing when she returned home about 1am on the morning of the 25 th and the appellant returned it later that morning. Later that day she found two earrings in the car which she handed to the police on 21 st September. The deceased's parents identified the earrings as belonging to her. Mr Palmer, meanwhile, had been arrested on 20 th September on suspicion of the murder, but he was released following the appellant's arrest. This took place at 5.20am on 21 st September and, on the same day at 1.20pm, he was shown the earrings by D.S. McCoy. Later the same day, in circumstances giving rise to the first ground of appeal, the appellant went with police officers to bushes near Cromwell Drive, Freeport. Bones, said to be those of the deceased and showing fractures of the skull due to several blows, were found, together with her slippers and a bangle.
During the trial, while D.C. Johnson was giving evidence of taking photographs, on 21 st and 22 nd September, defence counsel indicated that, at the end of cross-examination, he would be making submissions about two of those photographs, numbered 4 (of the appellant pointing at the skeletal remains) and 25 (of the appellant pointing at a garbage bin). It was put to D.C. Johnson in cross-examination that, following the shooting of a snake by D.C. Wilchcombe, the appellant had been forced at gunpoint to kneel and point for photograph 4 and that the following day, the appellant had again been forced to point for photograph 25. He denied these allegations.
At the conclusion of D.C. Johnson's evidence, in the absence of the jury, defence counsel submitted that photographs 4 and 25 should be excluded as being more prejudicial than probative and because they had been obtained by improper means, contrary to s.178 of the Bahamian Evidence Act 1996. The judge pointed out that there was no evidence of improper means. Counsel said he would return to the matter on the voir dire. Other evidence was then called for the prosecution including that about the motor car, the last sighting of the deceased and the earrings to which reference has already been made.
A voir dire was then held to determine the admissibility of oral and written confessions said to have been made by the appellant. Several police officers gave evidence in relation to events at the police station following the appellant's arrest and at the crime scene. In particular, D.S. McCoy gave evidence that the appellant said at the police station "Otis Palmer who is in the cell have nothing to do with it. I killed her and I can show you where it happen". He directed the police towards a bushy area at Cromwell Drive and said "I killed her over there". When they reached the bushes the accused pointed and said "There are the bones and clothing of Venette Bellizaire". The appellant gave evidence denying making these statements and saying that a written confession (the terms of which were not seen by the trial judge) was induced by mistreatment by a number of officers: he was threatened, beaten, pistol whipped and given electric shocks. He had deliberately misspelt his name in the written statement to prove that he had been beaten. The photographs taken at the crime scene were staged. The photographer was already there on 21 st when he arrived with other officers. After a snake had been shot at several times and killed by D.C. Wilchcombe, he was threatened with being shot and was forced to point for photograph 4 and, the nextday, for photograph 25. He called his brother and Otis Palmer in support of the allegations of mistreatment, all of which were denied in evidence by the several officers said to have been involved.
The judge ruled that the oral and written confessions be excluded. She said she was not sure (the onus being on the prosecution) that no threats were made. She had a reasonable doubt about whether the snake-shooting incident occurred. She was not satisfied the appellant had been told that he could consult an attorney, as is guaranteed by Article 19(2) of the Bahamas Constitution. She said "It doesn't take much to make a statement inadmissible". A discussion took place with Counsel about the status of the evidence about the visits to the crime scene on 21 st and 22 nd. Reference was made to sections 20 and 178 of the Evidence Act. A distinction was drawn between the confessions and the visits. The judge said "Obviously he's been to the Cromwell Drive area because that's apparent from the pictures and that's where the police say they found the bones. To some extent there's a conflict between them as to how that was done. Police say he pointed it out and he says he didn't. So obviously the jury will have to resolve that. I don't know that I can do very much about that because the pictures have gone in now you see". Later, the judge said to prosecuting counsel "The point is, anything that suggests he made a confession is basically out. But of course the exception is - so much of the confession as relates to the finding of these things is admissible. That's what sub-paragraph 5 says" (She was clearly intending to refer to s.20(4) of the Evidence Act). She also referred to Lam Chi-ming v The Queen [1991] 2AC 212 and to the difference between s.20(4) and the English Police and Criminal Evidence Act 1984, (PACE) and the Indian Evidence Act 1872. She referred to s.178 but concluded that, in view of the terms of s.20(4), she could not exclude the evidence about the finding of the bones under s.178(1).
In due course, when summing up, the judge posed the question in relation to events at the crime scene "Who do you believe, Mr Johnson or the accused and the other police witnesses who said he led them to the spot?"
After the judge's ruling, the jury were recalled. D.S. McCoy gave evidence in chief about going to the crime scene at the accused's direction and the taking of the photographs. He denied, in cross-examination, knowing in advance where the bones were. He made no reference in his evidence to the confessions which the judge had excluded. Subsequently, at the jury's request, the court went to view the crime scene. Two weeks after he had first given evidence before the jury, D.S. McCoy was recalled, apparently for the purpose of putting on record what had taken place during the view. His evidence in chief, which again included an account of how the accused had shown where the bones were so as to explain what the jury were shown, passed without incident. In cross-examination he was challenged about what had happened when he first went to the scene with the accused and, in particular, about the direction in which the accused had pointed. His answer included the following: "when I stopped the car he pointed to the western side….and said 'Venette, I killed her over there'. We exit the car and he led us to the bushes." Defence Counsel said "I'm only speaking about where the accused pointed. He never told you anything." The judge intervened: "The jurors will disregard any answer about what the accused is supposed to have said. There's no evidence before you about that." Cross-examination continued about other matters.
The appellant's defence was alibi, in support of which he called his brother-in-law. He claimed to have been at a family prayer-meeting between 6am and 7am on 25 th August and not to have borrowed Palmer's car on that date.
The Court of Appeal held that evidence of what the appellant did leading to discovery of the bones was admissible under the terms of s.20(4) although this did not relieve the judge of the obligation to decide admissibility by reference to s.178. The Court concluded that the trial judge had exercised her discretion under s.178 but, if they were wrong, they would have...
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