The Judicial Committee of the Privy Council Decisions

Simmons & Anor v. R. Rev 1 (Bahamas) [2006] UKPC 19 (3 April 2006)

Privy Council Appeal No 33 of 2005

(1) Ronald George Simmons

(2) Robert G Greene Appellants

v.

The Queen Respondent

FROM

THE COURT OF APPEAL OF

THE BAHAMAS

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL

Delivered the 3rd April 2006

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Woolf

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

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[Delivered by Lord Brown of Eaton-under-Heywood]

1. 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

2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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."

9. 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.
10. 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".

11. 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 had a gun, and thirdly that Greene took part in the housebreaking knowing that there was at the very least a real possibility that Simmons would use the gun if necessary to effect their common purpose (including, of course, avoiding arrest). Simmons's defence was that Constable Munroe's killing was an accident – that, at least, was the defence suggested by his confession statement; his dock statement consisted of a bare denial. Greene's defence was that he knew nothing of any gun until the Club was surrounded and he saw Simmons holding a gun as he kicked the door open. Quite what the appellants' defence was to the housebreaking charge it is difficult to see.
12. Their Lordships turn now to the judge's decision on the voir dire to admit both appellants' confession statements. This decision was set out in a sixteen-page written ruling which was described by the Court of Appeal as "careful and cogently reasoned" and to which their Lordships too would pay tribute for its clarity and concision. It is convenient first to set out the governing provisions of Bahamian law and then to consider the two statements in turn.
13. Article 19(2) of the Constitution provides that:

"Any person who is arrested or detained shall be informed as soon as is reasonably practicable, in a language that he understands, of the reason for his arrest or detention and shall be permitted, at his own expense, to retain and instruct without delay a legal representative of his own choice and to hold private communication with him . . ."

14. Section 20(2) of the Evidence Act (No 4 of 1996) provides that the court shall not allow a confession to be given in evidence against an accused person unless the prosecution proves to the court beyond reasonable doubt that the confession was not obtained by oppression of the person who made it nor rendered unreliable by anything said or done or omitted to be said or done in the circumstances existing at the time. "Oppression" is defined by section 20(5) as including "torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)." Section 20 substantially replicates section 76 of the Police and Criminal Evidence Act 1984 ("PACE").
15. Section 178(1) of the Evidence Act provides, in terms almost identical to section 78 of PACE:

"In any criminal proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court 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."

(a) Greene's statement

16. Greene's statement can be dealt with quite shortly. It was taken by Inspector Ferguson at Nassau Airport Police Station in the course of a videotaped interview. The judge's main findings (so far as relevant to the admissibility argument now advanced before the Board by Mr Owen Davies QC) were these. As already stated, Greene was cautioned by DS Thompson when arrested on arrival at the airport at about 3 pm and was also then told of his right to legal advice. He was cautioned by Inspector Ferguson at the beginning of his interview at about 5 pm but was not at that stage informed again (as he should have been) of his right to legal advice; the judge rejected Inspector Ferguson's evidence to the contrary. From Greene's own evidence given during the voir dire, however, the judge was satisfied that he knew that he had a right to legal advice and could exercise that right if he so desired. Having herself viewed the videotapes the judge was "satisfied that Greene was extremely relaxed, calm and comfortable during the interview, and exhibited no signs of distress." Greene further admitted in evidence on the voir dire that Inspector Ferguson did not do anything to make him confess; he did so of his own free will.
17. Those being the judge's findings it is hardly surprising that she decided to admit in evidence Greene's confession and the videotape and that the Court of Appeal upheld her decision to do so.
18. Mr Davies points out that on 5 March 2001, some three weeks before Greene's return to the Bahamas, his counsel, Mr Pinder, had written to the Attorney-General requesting that he be notified of Greene's arrival and be allowed to see him before he was interviewed. It appears, however, that the letter, although received by the Attorney-General's office, was never seen by him. Regrettable though that may be, the judge was surely entitled to conclude, as she did:

"In my view, a lawyer has no right to see a client, the right is that of the suspect to seek advice and I am satisfied that at no time either during the interview or at any other time, did Greene request to see a lawyer."

(b) Simmons's statement

19. Simmons's statement too was taken by Inspector Ferguson during a videotaped interview. He, like Greene, had been cautioned by DS Thompson and advised of his right to legal advice when arrested at the airport. The subsequent taking of his statement, however, was altogether less satisfactory than in Greene's case.
20. The judge's main findings in Simmons's case were these. He was not cautioned by Inspector Ferguson before the interview began nor was he formally cautioned during it. Although he signed the written caution on the statement there is no indication that he was allowed to read it or that it was read or explained to him. He was not informed by Inspector Ferguson before the interview began of his right to legal advice. More troublingly still, "despite Simmons's obvious concern [at not having a lawyer present] Ferguson ignored it and continued to talk to him seemingly trying to dissuade him from seeking legal advice and encouraging him to talk". The judge found Simmons's concern at not having counsel present evident both from his demeanour during the interview as shown on the tape – "He was pensive, his voice was low and he appeared to sigh a number of times" – and from three particular exchanges: first, "I have no problem making a statement. I personally would prefer to have my attorney present, not that I mistrust what you write down, but I personally prefer to have one", to which Ferguson responded, "Your family was aware you were expected today. I haven't seen anyone and no counsel has contacted me. Obviously you were in custody since February and no one was in touch with me. You are 27 years old. What is really the case here is that if for some reason you feel like that, I can allow you to make your own statement, write your own statement, I have no problem with that;" second, "Could I have a public defender or a court-appointed attorney?" to which Ferguson replied "Obviously, you cannot go to trial without one, not for the case you are accused of. Even if your parents can't afford one you will be assigned one by the court when you are charged"; third, "I want to make a statement about 16 October, it isn't going to change, but I do not want to make it and my attorney say . . . . I am tired of making mistakes in my life, honestly", to which Ferguson replied, "You know what is a mistake? When you took your shotgun to Andros and allowed Satan to overtake your mind. My job is to inquire of you, your version of what happened. You have two options, you relate and I write it or you write it down yourself. You determine."
21. There were two other relevant findings of primary fact made by the judge. First, that Simmons's counsel, Mr Ducille, attended the police station that afternoon but was told by Officer Beneby that Simmons was not there: "I believe Beneby lied to counsel. But there is no evidence that there was any coordination between Beneby and Ferguson to deliberately keep Simmons from communicating with his counsel." Second that, contrary to Simmons's sworn evidence on the voir dire, he was not threatened by the police with physical harm – he said that Officer Knowles had told him that "If I don't cooperate, he's going to take me outside and shoot me" – and so it was not for this reason that he made his statement.
22. In the light of all the evidence the judge concluded that although "there were a number of breaches, namely the denial of his right to legal advice and the failure to caution him before interviewing him", she did not think they were "deliberate or . . . done with any ulterior motive." Moreover, having found that no threats were made against Simmons, she concluded:

"There is nothing then which suggests that he would not have confessed if he had been permitted to communicate with his attorney. Indeed, he indicated that he wanted to give a statement and that it would not change if he had a lawyer present. He seemed to genuinely want to tell the police what happened, although he was not keen to do so in the absence of his attorney. There is therefore, in my view, no causal link between the conduct of the police and his decision to make the confession."

She then said:

"Although I consider the interest of Simmons not to be subject to unlawful, improper or unfair conduct by the police to be an important factor, yet I cannot overlook the fact that the confession is very cogent evidence against Simmons."

She finally concluded:

"I am satisfied beyond a reasonable doubt that there was no oppression, nor was Simmons's confession rendered unreliable by anything said or done by the police or omitted to be done by them. Further, I believe that justice requires that the evidence be admitted."

23. The Court of Appeal reviewed the judge's conclusion on the admissibility of Simmons's statement at some length before noting that she had "accepted that there had been a breach of Simmons's constitutional right to consult an attorney and took that important factor into consideration along with all the other factors before coming down on the side of admitting the confession". They could "detect no error of reasoning or of law in the learned judge's ruling."
24. Despite Mr Jones' criticisms of the judge's conclusions that the police's failures had not been "deliberate" and that Simmons's statement had not been obtained by oppression nor rendered unreliable by anything said or done at the police station, their Lordships accept that, generous to the police though these conclusions might appear, the judge had (as the Board has not) the benefit both of seeing the videotapes and of hearing oral evidence over several days and was entitled to reach them.
25. The Board, however, takes a different view with regard to the issue arising under section 178 (1), the fairness of admitting the confession into evidence. There was in Simmons's case the clearest possible breach of his constitutional right under article 19(2). It was not merely that Inspector Ferguson had failed to inform him of his right to communicate with a legal adviser – a right implicit in the right to retain, instruct and communicate with such an adviser (see Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240, 247-8) – but, much more important, that Inspector Ferguson positively and repeatedly denied Simmons that right, continuing with an interview which he himself finally had to admit should have been stopped. Their Lordships respectfully question the judge's conclusion that Simmons would still have confessed even if he had been permitted to communicate with his attorney and that there was therefore "no causal link between the conduct of the police and his decision to make the confession". One simply cannot know whether or not Simmons would have been advised by his attorney to confess, and still less the precise terms in which any confession statement would have been made.
26. The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion.
27. The approach to be taken to the admission of a confession obtained in breach of a constitutional right was considered by Lord Steyn in the Board's judgment in Mohammed v The State [1999] 2 AC 111, 123-124, an appeal from Trinidad and Tobago:

"It is a matter of fundamental importance that a right has been considered important enough by the people of Trinidad and Tobago, through their representatives, to be enshrined in their Constitution. The stamp of constitutionality on the citizen's rights is not meaningless: it is clear testimony that an added value is attached to the protection of the right. . . . On the other hand, it is important to bear in mind the nature of a particular constitutional guarantee and the nature of a particular breach. For example, a breach of a defendant's constitutional right to a fair trial must inevitably result in the conviction being quashed. By contrast the constitutional provision requiring a suspect to be informed of his right to consult a lawyer, although of great importance, is a somewhat lesser right and potential breaches can vary greatly in gravity. In such a case not every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of a constitutional right is a cogent factor militating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect's constitutional rights."

28. Whilst acknowledging, as the Board already has, the judge's entitlement to find that the police here did not deliberately frustrate Simmons's constitutional right, their Lordships nevertheless conclude that on the facts of this case the only proper decision open to the judge was to exclude the statement. Inspector Ferguson's conduct, both in denying Simmons the opportunity to consult a lawyer (leave aside the irony of his lawyer in fact being immediately available) and in conducting the interview on the express assumption of guilt, really demanded no less. Insufficient regard was paid both by the judge and the Court of Appeal to the importance of constitutional rights and their need to be vindicated by the courts. The Board accordingly concludes that there was "a wrong decision or misdirection on [a] question of law or fact" within the meaning of section 13(1)(c) of the Bahamas Court of Appeal Act 1964. It does not follow, however, that Simmons's appeal must be allowed, (still less Greene's). Under the proviso to section 13 the appeal may be dismissed "if the court considers that no miscarriage of justice has actually occurred."
29. That indeed is their Lordships' clear view on the present appeal. They entertain not the least doubt that, even had Simmons's confession statement been excluded, he must inevitably have been convicted. There was here more than a sufficient prima facie case against each appellant (even without the benefit of the House of Lords' decision in R v Hayter [2005] 1 WLR 605) to defeat any submission of no case to answer. Moreover, on any view of the facts Greene would have been bound to give evidence, just as he did, and at that point, as the judge correctly directed the jury, his confession statement, which he affirmed as true, together with his additional evidence, became (yet further) evidence against Simmons.
30. The reality here is that Simmons's best hope of an acquittal lay in the jury accepting rather than rejecting (or ignoring) his confession statement. Its main importance lay not in its confirmation of the truth of what the prosecution could in any event prove through other witnesses, but rather in advancing the defence of accident. Although no doubt in part inculpatory, the statement was obviously intended to be exculpatory. That said, Simmons's acquittal would have flown in the face of all reason and common sense. To have fired three shots Simmons needed to have pumped his shotgun three times. And pellets from two of the three cartridges were, as indicated, recovered from Constable Munroe's head.
31. In Greene's case too an acquittal would have defied all reason. No jury could have doubted that he knew of the shotgun long before Simmons brandished it when escaping from the Club. After all, Greene lived with Simmons and they had travelled together with the gun from Nassau to Andros. Greene himself had collected the gun after disembarkation and carried it away in the black bag from the airport. It had been with them all day. And when Simmons broke into the Club through the window he must surely have had to put it down. It just makes no sense to suppose that Greene saw the gun for the first time once they were surrounded.
32. That disposes of the only grounds of appeal advanced by the appellants before the Court of Appeal which are still persisted in before the Board. But each appellant seeks in addition to rely upon further grounds not previously advanced. In particular both argue that, through the incompetence of their respective trial counsel, they were denied the benefit of a good character direction.
33. The Board regard this as a hopeless argument. In the first place it is less than clear that, certainly by the time of trial, each was of good character. Indeed in Greene's case it is now clear that he was not: rather he had been convicted of assault whilst in the US and sentenced to 75 days imprisonment. And it is clear too that because of this his counsel, Mr Pinder, took a policy decision not to put his character into evidence, stating in terms: "He was incarcerated. People might see that as a negative."
34. As for Simmons (on whose behalf this point was not taken until Mr Jones rose to his feet before the Board), whilst it is true that his counsel, Mr Ducille, said in mitigation that "he has never had any sort of negative connection with the law" (an assertion which Mr Ducille has recently confirmed in letters to Mr Jones but which, regrettably, the prosecution has had no opportunity to check), Mr Simmons said in his unsworn statement from the dock that during his interview he had asked Inspector Ferguson for a public defender – "That's what I got used to when I was in Nebraska. If you were arrested, they will ask you if you want a public defender to come and defend you."
35. Even assuming, however, that both appellants were of essentially good character and that, but for the incompetence of their respective trial counsel, some form of modified good character direction would have been given by the judge, it is impossible to see how this could have availed them. On any view they took a shotgun to Andros with a view to breaking into the Club and stealing drugs and money and, after the shooting, stole a boat before fleeing to the United States. Nothing to their advantage could have been said as to propensity. Nor realistically could they have benefited from a direction as to credibility (least of all Simmons who chose not to give evidence on oath anyway). In short, the jury's verdicts must inevitably have been the same whatever good character direction might properly have been requested of the judge and included in the summing up. The Board's recent judgments in Vijai Bhola v State of Trinidad and Tobago [2006] UKPC 9 and Edmund Gilbert v The Queen (Grenada) [2006] UKPC 15 emphasise that, whatever may previously have been supposed (in particular by reference to Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421), "the cases where plainly the outcome of the trial would not have been affected by a good character direction may not after all be so 'rare'": see Bhola's case, at para 17. This is yet another such case.
36. Two final grounds of appeal can be disposed of still more briefly. The first is an argument advanced on behalf of Simmons in reliance on the decision of the House of Lords in R v Mushtaq [2005] 1 WLR 1513. The House held there that section 76(2) of PACE required the jury to be directed that if they considered that a confession was or may have been obtained by oppression or any other improper conduct they should disregard it. This was, as the House recognised, a departure from the pre-existing law laid down by the Privy Council in Chan Wei Keung v The Queen [1967] 2 AC 160 (and faithfully followed by Allen J in the present case) whereby juries are directed that if they are sure that the statement is true "you may rely on it even if you find it was or may have been made as a result of oppression or other improper circumstances." It is unnecessary for their Lordships to decide whether Mushtaq should be applied retrospectively in the Bahamas to override the clear effect of previously binding Privy Council authority. The short answer to this ground of appeal is necessarily the same as that concerning the admission of Simmons's statement into evidence in the first place: even had the Mushtaq direction been given and the jury disregarded the statement, they must inevitably still have convicted him.
37. The final ground of appeal was one advanced on behalf of Greene, essentially complaining of the judge's refusal to allow his trial counsel to elicit from a prosecution witness (Wallace) the fact that Constable Rolle, a day or two after the shooting, had allegedly said to Wallace something inconsistent with the constable's evidence at trial. Constable Rolle said at trial that he heard three gunshots before Greene ran out of the Club. It was put to him in cross-examination that he had told Wallace that Greene was standing right in front of him when the shots rang out. Again it is quite unnecessary for the Board to address the somewhat technical argument arising under Bahamian law as to whether or not evidence of inconsistent oral (as opposed to written) statements is admissible. It is sufficient to record (as Mr Owen Davies accepted) that such evidence went to no issue save whether Greene or the constable were to be believed on that particular question. Even if Greene's account was correct it could not have availed him. Counsel rightly disallowed any suggestion that it could have supported a defence of withdrawal from the joint enterprise. And it could certainly not have helped Greene persuade the jury, contrary to all reason, that he knew nothing about the gun until the appellants escaped from the Club.
38. In short, all the appellants' grounds of appeal, whether taken singly or together, founder on the same rock: the overwhelming weight of direct and circumstantial evidence massed against them. Their Lordships will humbly advise Her Majesty that the appeals against conviction should be dismissed.
39. On 8 March 2006 the Board gave its decision in Bowe v The Queen [2006] UKPC 10 advising Her Majesty that section 312 of the Penal Code of the Bahamas (now section 291) should be construed as imposing a discretionary and not a mandatory sentence of death. These appellants are in precisely the same position as the appellants there. It follows that these appeals against sentence too should be allowed, the death sentences quashed and the case remitted to the Supreme Court for consideration of the appropriate sentences. The Board will so advise Her Majesty.