Simmons & Anor v. R. Rev 1 (Bahamas)  UKPC 19 (3 April 2006)
Privy Council Appeal No 33 of 2005
(1) Ronald George Simmons
(2) Robert G Greene Appellants
The Queen Respondent
THE COURT OF APPEAL OF
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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 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]
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.
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."
"I did not shoot anyone. I had no intentions of shooting anyone or killing anyone on October 16, 1997".
"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 . . ."
"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
"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
"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."
"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."