Watson v The King (Bahamas) [2023] UKPC 32 (05 September 2023)

Lord Lloyd-Jones:

The appellant, Mr Roger Watson, appeals against his sentence of 50 years’ imprisonment imposed on 25 June 2009 by the Court of Appeal of the Commonwealth of The Bahamas in respect of an offence of manslaughter.

The trial of the appellant took place before Allen SJ and a jury in the Supreme Court, Nassau, The Bahamas between 13 and 26 September 2006. He was charged with a single count of murder contrary to section 291 of the Penal Code (Ch84), and he pleaded not guilty.

The prosecution case at trial was that on 15 January 2003 at around 8:00pm the appellant used a rifle to shoot a series of bullets into the house of a Mr Pinder, a wooden structure where Mr Pinder and another man, Mr Munroe, often stayed. The shooting left ten bullet holes in the front partition wall. One of the bullets struck and killed Eddison Curtis-Johnson, Mr Pinder’s 12-year-old stepson, who was sitting in the living room at the time.

The case against the appellant was largely based on recognition. Three other witnesses described seeing the shootings. One of these witnesses also gave evidence that he had witnessed an altercation between the appellant and Mr Munroe on the day of the shooting.

The prosecution alleged that the appellant harboured “feelings of enmity” towards Mr Munroe and intended to kill him. There was no evidence that lights were on in the house, with the exception of an outside light, and there was no other evidence that indicated that it was observable from the outside of the property that someone was at home.

The appellant advanced at trial a defence of alibi. He gave evidence that at the time in question he was by a bar with friends and a girlfriend. The bar manager gave evidence that he had seen the appellant outside the bar in question but could not recall the exact time, only that he thought that it was “sun-setting time.”

As to the alleged motive for the shooting, the appellant accepted that there had been two previous altercations between him and Mr Munroe involving things being thrown at the appellant’s car. He denied, however, that there had been any sort of confrontation between him and Mr Munroe on the day of the shooting and he denied feeling angry towards him.

On 26 September 2006, the appellant was convicted of murder by a unanimous verdict.

As a result of delay in obtaining a psychiatric report, it was not until 20 September 2007 that the appellant was sentenced. The court heard evidence from a psychiatrist and the appellant’s mother, and it heard oral submissions from counsel. The trial judge sentenced the appellant to death pursuant to section 2 of the Capital Punishment Procedure Act (Ch94).

In a written ruling delivered on the 20 September 2007 the judge noted the following matters:

(1) The evidence showed that a number of bullets had been fired into the home, that the weapon was a high-powered rifle and “that the bullet which hit the deceased was a special bullet which exploded on impact causing a bursting of the victim’s head and the expulsion of brain tissue.” (In fact, it seems that the bullet was an ordinary .223 high velocity round for use in a rifle, but it caused enhanced impact trauma for the reasons explained by the expert at trial.)

(2) The circumstances which emerged during the trial showed that the appellant had had an altercation previously with the uncle and father of the victim, evidence from which the prosecution invited the jury to infer that the motive for shooting up at the house was revenge.

(3) Having considered the evidence of the probation officer, the psychiatrist and the appellant’s mother, the evidence disclosed no personal circumstances which may have influenced the events which could be considered mitigating. Nor had the judge found any other mitigating circumstances.

(4) The appellant’s antecedents showed a propensity to violence. However, all of his convictions except for one offence of assault were spent at the time of the hearing and, as a result, only that one offence of assault was taken into consideration.

(5) Murder was extremely prevalent and spiralling ever upwards in The Bahamas. As a result, the objective of sentencing for this offence must be retribution and deterrence.

The Judge concluded:

“Having considered:

(i) that the victim was an innocent child;

(ii) that a firearm was used in the commission of an offence;

(iii) that the offence was as a result of an assault, I consider a ‘home invasion’.

(iv) that the convict deliberately and callously stood in front of, and fired into, the home, reckless as to whether anyone was at home at the time and not caring who was hit, an act of terrorism;

(v) that there was no remorse shown by the convict;

(vi) that there are no mitigating factors;

(vii) that there was significant premeditation in that the convict;

(a) secured a high-powered rifle capable of penetrating the walls of the home and special bullets designed to kill and destroy;

(b) outfitted himself in camouflage clothing in an attempt to disguise himself;

(d) chose 8:00pm on a weeknight, a time when children and parents were likely to be at home;

I conclude this is a case, which fits in the upper range of the spectrum of criminal culpability for murder.”

The appellant appealed to the Court of Appeal against his conviction and sentence. On 25 June 2009, the Court of Appeal (Sawyer P and Osadebay JA; Longley JA dissenting) quashed the appellant’s conviction for murder and substituted a conviction for manslaughter, imposing a sentence of 50 years’ imprisonment.

The principal ground of appeal against conviction was that the judge had misdirected the jury on the issue of the requisite intention for murder. The Court of Appeal noted (at para 35) that in The Bahamas, unlike England and some other countries, the specific intention required to be proved in law for murder is an intention to kill. Any other intention, such an intention to cause grievous bodily harm or recklessness as to whether death would be caused, is not sufficient. (James Dean v Regina [1989-90] 1 LRB 534.)

The Court of Appeal then referred to section 12(3) of the Penal Code (Ch.84) which provides:

“If a person does an act of such a kind or in such a manner as that, if he used reasonable caution and observation, it would appear to him that the act would probably cause or contribute to cause an event or that there would be great risk of the act causing or contributing to cause an event, he shall be presumed to have intended to cause that event, unless it is shown that he believed that the act would probably not cause or contribute to cause the event. ”

The judge, in directing the jury, had used the words of the subsection, referring to the great risk of harm and death being caused by the voluntary actions of the person who fired into the wooden house with a high-powered rifle and high velocity bullets. The majority of the Court of Appeal noted that the difficulty was that there was no evidence that anyone was in the house that night. It considered that, since the owner was not at home and there was no evidence that the appellant knew or that, if he had used reasonable caution and observation, he ought to have known that someone was in the house that night, all that could reasonably be inferred was that the appellant was reckless. The majority considered that the judge’s direction was inadequate, first because there was no evidence that anyone was at home and secondly because it presupposed actual or constructive knowledge in the appellant of the presence of persons in the house at the time of the shooting when in fact there was no evidence as to that nor could such knowledge be presumed without evidence. Furthermore, the direction appeared to indicate that recklessness as to whether death occurred or not was sufficient to support conviction for murder in The Bahamas. As a result, this was a misdirection. The majority concluded that the jury must have been confused into believing that recklessness in not caring whether or not someone was in the building was sufficient in The Bahamas to found a conviction for murder. These were misdirections which undermined the integrity of the conviction for murder.

The majority then disposed of the appeal (at paragraph 45) in the following terms:

“For the reasons given, we would allow the appeal, quash the conviction for murder, set aside the death penalty; and substitute therefore a conviction for manslaughter and impose a sentence of fifty years’ imprisonment with effect from the date of conviction because in our judgment on the scale of manslaughter, this offence stands at the top end.”

On 15 December 2021, the Judicial Committee of the Privy Council granted the appellant permission to appeal against the sentence of 50 years’ imprisonment imposed on 25 June 2009 by the Court of Appeal.

The grounds of appeal are as follows –

Ground 1: There was a serious breach of natural justice when the sentence was imposed because:

(a) the Court of Appeal failed to give the appellant the opportunity to address the court on the duration of the fixed term sentence that was appropriate in his case;

(b) the Court of Appeal failed to give adequate reasons as to why 50 years’ imprisonment was the appropriate term.

Ground 2: The sentence was based on an error of principle and / or an error of fact, in that the Court of Appeal did not reflect in the sentence its own finding that the appellant lacked an intention to kill.

Ground 3: The Court of Appeal failed to consider mitigating factors.

Ground 4: The Court of Appeal failed to take into account the 3-year period that the appellant had served in custody on remand.

Ground 5: The sentence was manifestly excessive in all the circumstances.

Ground 1: Breach of natural justice

On behalf the appellant it was submitted that there was a substantial breach of natural justice and a denial of the appellant’s right to a fair trial. The Court of Appeal, having reduced his conviction for murder to one of manslaughter, proceeded to sentence him without inviting the appellant to address the court on the question of the appropriate sentence. Although there is no transcript of the appeal hearing, there does not appear to have been any discussion during the hearing about the term of imprisonment that would be appropriate for a substituted conviction for manslaughter should the appeal against conviction succeed. It is the recollection of both counsel representing the appellant on that occasion that the court did not invite submissions on the length of a custodial sentence either at the hearing or at any time prior to delivery of the judgment. The written and oral submissions of the parties before the Court of Appeal focused on whether the offence warranted a death sentence and did not address the term of imprisonment if the appeal against conviction was allowed. Nothing in the judgment indicates that there was a discussion during the hearing of the appropriate sentence for manslaughter. On behalf of the appellant, it is accepted that counsel then representing him should have been prepared to address the Court of Appeal on sentence in the event that the appeal against conviction was allowed. Nevertheless, it is said that the Court of Appeal should have afforded the appellant that opportunity and that, had it done so, he could have drawn to the attention of the court comparable sentences for similar offences.

In the Board’s view the failure of the Court of Appeal to hear the appellant’s counsel on this issue before passing sentence was a serious breach of procedural fairness.

In Moss v Queen [2013] UKPC 32; [2013] 1 WLR 3884 the Court of Appeal of The Bahamas had allowed Moss’s appeal against a conviction for murder and substituted a conviction for manslaughter. It then resentenced the appellant without hearing submissions as to the appropriate term. Lord Hughes, delivering the judgment of the Board, stated (at para 5):

“It is elementary that, at least where the sentence is not fixed by law, a criminal court has a duty to give a defendant the opportunity to be heard, through counsel or otherwise, before sentence on him is passed. That is so however little there may appear to be available to be said on his behalf. As Megarry J memorably put it in John v Rees [1970] Ch 345, 402:

‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’

An omission to hear a defendant before passing sentence is a serious breach of procedural fairness. That simple proposition does not need the citation of authority.”

Lord Hughes went on to note that there may be cases in which, despite a breach of this duty by the court, a reviewing court can be confident that no injury can have been done to the defendant because no submissions that might have been made on his behalf could have reduced the sentence below that passed. However, he observed, in a serious case of homicide such as Moss, and especially where a long sentence had been passed which had some time to run, the Board would need to consider long before reaching such a conclusion. The Board was satisfied that Moss was not a case in which that could be said.