UKPC 16
Privy Council Appeal No 0003 of 2010
Maxo Tido (Appellant) v The Queen (Respondent)
From the Court of Appeal of the Commonwealth of the Bahamas
JUDGMENT DELIVERED BY
15 June 2011
Heard on 7 March 2011
Julian Knowles QC
(Instructed by Simons Muirhead & Burton)
Peter Knox QC
(Instructed by Charles Russell LLP)
The facts as they emerged from the evidence at the trial
The case for the appellant
"[The judge] should have gone on to warn the jury of the dangers of identification without a parade and should have explained to them the potential advantage of an inconclusive parade to a defendant such as the appellant. For these reasons, he should have explained, this kind of evidence was undesirable in principle and the jury would require to approach it with great care: R v Graham  Crim LR 212 and Williams (Noel) v The Queen  1 WLR 548."
"[The victim] was permitted at several points in his evidence to point out the appellant in the dock as the man whom he identified as the gunman who shot him. It is well established that this would be a serious irregularity if it were the first identification: see, e.g. The State v Constance, Wilson and Lee (1999, unreported), where Sir Patrick Russell, giving the judgment of the Board, stated that it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate  UKPC D1, 2005 SLT 563 … It is … an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged."
The judge's directions on dock identifications
"Another weakness that I point out to you is that no identification parade was held to test [Ms Edgecombe's] ability to identify the person she identified as the accused. So, she identified him here for the first time. Other than, of course, the time that she said she identified him to the police the day after. But an identification parade is held to test the ability of a witness to pick out a person from a group of persons. And so that is a weakness which I point out to you."
The exercise of the proviso
"13.(1) After the coming into operation of this section, the court on any such appeal against conviction shall allow the appeal if the court thinks that the verdict should be set aside on the grounds that-
(c) under all the circumstances of the case it is unsafe and unsatisfactory
... Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the court considers that no miscarriage of justice has actually occurred."
"The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: see Woolmington v Director of Public Prosecutions  AC 462, 482-483, per Viscount Sankey LC In Stirland v Director of Public Prosecutions  A.C 315, 321 Viscount Simon L.C said that the provision assumed: 'a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.' As he explained later on the same page, where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility. Where the verdict is criticised on the ground of a misdirection such as that in the present case, and no question has been raised about the admission of inadmissible evidence, the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence."
The appeal against sentence
"20. Judges in the Caribbean courts have in the past few years set out the approach which a sentencing judge should follow in a case where the imposition of the death sentence is discretionary. This approach received the approval of the Board in Pipersburgh v The Queen  UKPC 11, and should be regarded as established law.
21. It can be expressed in two basic principles. The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, "the worst of the worst" or "the rarest of the rare". In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled."
"125. In our view, the worst cases of murder which may call for the imposition of the most condign punishment which the law allows, would be those in which the murder is carefully planned and carried out in furtherance of another crime, such as armed robbery, rape, drug smuggling, human smuggling, drug wars, gang enforcement policies, kidnapping, preventing witnesses from testifying, serial killers, as well as the killing of innocents for the gratification of base desires mentioned by Lord Bingham. It must also be borne in mind that in some cases, persons who commit murder in the last mentioned kinds of cases, may themselves be found to be suffering from mental illness of one kind or another which may not attain the level of insanity under the McNaughten Rules, but would be sufficiently weighty as to cause justice to be tempered with mercy in their cases."