Privy Council Appeal No. 48 of 2000

Forrester Bowe (Junior)
Appellant
v.

The Queen
Respondent

FROM

THE COURT OF APPEAL OF THE BAHAMAS
-----------------

JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Delivered the 10th April 2001
--------------------

Present at the hearing:-

Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote

[Delivered by Lord Bingham of Cornhill]

1.	The appellant appeals by special leave of the Board against the dismissal by the Court of Appeal of the Bahamas (Zacca, Carey and Burton Hall JJA) of his appeal against a conviction of murder.  The appellant’s grounds of appeal relate to the admissibility of a written statement signed by him after his arrest, the evidence of identification which the jury were invited to consider and the holding of a third trial on a capital charge.   To understand and evaluate these grounds it is necessary to rehearse the facts of the case and the history of the proceedings in some detail.

2.	At about 8.00 p.m. on 23 October 1992 Deon Patrick Roache was shot dead in Freeport, Grand Bahama.  The police were called to the scene of the killing.  They there met and took a statement from Mr Fabian Laing.  The statement was to this effect:

“On Friday, the 23rd October, 1992, about 7.00 p.m., I along with my friend, Deon Roache, went by my girlfriend, Karen Forbes, apartment number 1, 12, Peridot Place in Coral Gardens.  On arrival at my girlfriend’s apartment, me and Deon sat down in the front room and started watching T V at about 8.00  on the above – mentioned date.

While in my girlfriend’s apartment, I heard a knock on the eastern door.  I then got up from where I was sitting in the couch and walk to the door.  I didn’t ask who it was, I just open the door a little.  I then recognised that two men was there, one I recognised to be Ouncey.  I then ask him what he wanted.  The next man along with him then pull open the door, then grab me and asked where is the money.  Free up the money.  Me and him then started scuffling.  The next man who was along with him then pulled out a chrome 25 pistol and he rush over Deon who was sitting in the chair by the eastern door with his gun.  After I saw him pull this gun, I then get away from Ouncey and I started running out the eastern door.  

While running out the eastern door, I heard a shot went off, I then heard about two more shots fired off in the front of the apartment.  I then saw Ouncey and his friend got into this little Suzuki car and sped off.  This car had a for sale sign on the back windshield.  After they pulled off, I then went back into the apartment and I met Deon on the floor by the western door.  The chair he was in was tumbled  over and he was motionless.  I then checked him and I lift up his shirt and saw a little hole he had in his chest.

My girlfriend, Karen, then call the ambulance.  The handgun the man along with Ouncey had was a 25.  I also find a spent on the ground by where Deon was.  The man I know is Ouncey, the cousin of Larry Rolle also Ouncey, also known as Ouncey, who lives on Lime Wood Lane.  

These men weren’t masked.  I can recognise both of them.  Ouncey clothes was a dark windbreaker, shirt and a dark – coloured pants.  The next man was wearing a dark - coloured jacket and a green – coloured pants.  I sold my motorbike XT 600 Trail to Trevor Lewis through Redwood Lane for 3,500.  I sold my 300 XZ, 1985, to another Trevor, his last name I don’t recall.  He sold it for 7,500.  Larry Rolle does hang out with Trevor Lewis them.  They might just think that I kept my money in my girlfriend apartment, that’s why they kept saying where the money.  Where the F..ing money?  Free up the money.  I have been seeing Ouncey for the past year around Redwood along with Larry.  The man that was with Ouncey was about 5’6”, slim, small built, he was bright complexion and appeared to be around 16 or 17 years old.  He was wearing a two – toned colour cap.

When I sold my car to Trevor, Larry was there.   After I sold the bike, my motorbike to Trevor he then dropped me by my girlfriend in Coral Gardens.  I drop off my money.  Trevor then carried me and get my motorbike from by Deon house on Albacore Drive.  I then ride it down Redwood Lane, and Trevor Lewis paid me 3,500.  After this, my cousin, Andrew drop me home.  I sold my motorbike and car on Thursday, the 15th, the 10th, ’92.  Ouncey who was along with the young boy who shoot Deon lives in an apartment on Mid Shipment Road near Lizard’s house.  I have known Deon Roache all my life.  Me and him school together.”

3.	Evidence was given at the trial by Ms Dollymae Rolle, the appellant’s older sister.  They had  a brother named Ricardo, and she had a son Larry (deceased by the time of the trial) who was the appellant’s nephew.  She saw the appellant leave a neighbour’s house at about 8.00 p.m. on 23 October 1992 in a red car with a “for sale” sign on the back which she thought was a Honda.   She recognised the car as belonging to her friend Gloria.  She sometimes saw the car being driven by Gloria’s son Quincy, whom Laing (according to his evidence at the trial ) called Ouncey.  Dollymae Rolle testified that she saw the appellant again at about 11.00 p.m. that same night, and told him that the police were looking for him.  She had heard that the appellant was sometimes known as “Tiger”.

4.	Evidence was also given at the trial by a Mr Stubbs who was in Coral Gardens at about 8 – 8.30 p.m. on 23 October 1992.  He heard the noise of quarrelling from an apartment  followed by a shot.  He then saw a red Suzuki drive away from the scene, and another shot was fired which wounded him.   

5.	According to evidence given by Police Sgt McCoy at the trial, he received information from an informer on 24 October 1992.  There was, very properly, no evidence at the trial of the informer’s identity or of the information which he supplied.   According to McCoy, this information led him to conclude that an identification parade was not necessary. 

6.	The appellant was arrested on the morning of 26 October 1992.  When interviewed by Sgt McCoy and DC Neymour concerning the murder of Deon Roache, and after caution, he replied (according to the police evidence): 

“Officer McCoy, me and him was hassling and my gun went off, hitting him somewhere in his chest, so me and Ouncey roll out in Ouncey red Suzuki car, and he dropped me home.”  

The appellant was asked if he would like to make a written statement and said he would.  A statement was then written down and signed by him.   So far as material the statement read as follows:

“Friday evening gone, I came to Freeport on a charter flight.  When I reach, I catch a ride with a Rasta in the ghetto.  My sister, Dolly, was in the ghetto, so I went with her and we went home.  When we get home, my uncle, Larry Rolle, who they call Ouncey, and Brent Pratt, who also call Ouncey pulled up in Brent red Suzuki car and I gone with them.  We went and I get something to eat.

On our way, Larry went with Dolly, he said that they was going to get some rings and shades from Brent brother.  Me and Brent went by his house and Dolly and Larry follow us.  When we reach there, Brent brother wasn’t home, so we left to go into Hawksbill.   

On our way, Fabian stopped us by the red light going into Carvel Beach.  Brent came out of the car and talk to him, then he came back into the car and we went into Hawksbill. Brent get the rings and shades and give it to Dolly, then him and Larry left me and Brent gone by Burger King by the Bazaar.  We chill for about 5 to 10 minutes, then we gone back by Dolly.  Larry then left and say he was going check Fabian.  He went in Brent red Suzuki car.  

About half an hour later, Larry came back with Fabian.  Larry stayed and me, Brent and Fabian went, we dropped Fabian off in Coral Gardens, then we went by Brent house for Mid Shipment Road and get the coke.  Brent left and say he was going to check Fabian.  When he came back he said, man, it look like Fabian them have intention of taking us.  But he said let’s go, if they try to take us we will take them because I have my rod.  He showed me a chrome 22.  We then left in his red Suzuki car.  It was getting dark.  And by the time we got by Fabian apartment it was dark.  

Brent had the rod and I had the coke.  Fabian  jeep was there, so we park in the back  by the kitchen.  Shortly after Fabian pulled up, a bright-skinned, tall fellow was him, they went into the apartment and he invited us behind him.  When we get inside, we sat by the table near the kitchen.  The bright fellow was in the chair by the door, and the lady was sitting in the chair by the room door.

Fabian gone in the room and bring the money out.  He started counting it out on the table, and when he was finished counting it, Brent tell me to get the coke out of the car, so I went and bring the coke back, put it on the table.

Fabian started looking at it and he asked for the scale to weigh it.  He started telling Brent this is a flam.  He then pulled his gun out.  It looked like a chrome 45.  Him and Brent start hassling so Brent pull out his gun.  They continue to hassle, so I grab Brent gun and rush to the fellow by the door.  Me and him start hassling.  I heard two shots went off where Fabian them was hassling.  Me and the men continue to hassle, and my gun went off and hit the fellow somewhere in the chest because he drop to one side.

When I saw this, I run through the front door.  Brent came behind me.  We rush in the red car and pulled off.  Fabian bus’ couple shot at us, but none hit us or the car.

Brent drop me home by Dolly and he left in his car.  I went next door to Vera.  Later I went back home.  Dolly say the man was looking for me.  She asked me why the man is looking for me.  I told her I don’t know.  A fellow name Pancake took me by my sister who live in Mayfield Park, where I stayed until I got locked up.

We left the coke and the money on the table, Fabian have all of them.  When we rush in the car, I gave the gun back to Brent.

The following day, Dolly told me that a fellow got kill in Coral Gardens, and the man is looking for me and Brent.  From Brent drop me off, I haven’t seen him since.”

7.	According to evidence given at the trial by Mr Fayne Thompson, a barrister,  he visited the appellant at the police station on 26 October 1992 when the appellant complained of being beaten by the police, although Mr Thompson did not at that time notice anything about him and saw no injuries.

8.	On the following day, 27 October 1992, Fabian Laing visited the police station where the appellant was held.  He was in the entrance area.  Sgt McCoy went to fetch him.  While they were there, Laing saw the appellant, who was being taken to the bathroom, and he identified the appellant to McCoy as Tiger, who had shot Deon Roache.  At McCoy’s invitation Laing made a further statement in which he said:

“On Friday, the 23rd October, 1992, just before Ouncey and the other guys came to the to our apartment and tried to rob us, I was home all evening along with my girlfriend and Deon.  At one point we went out to the tailor to Foster Lane and then we went back home.  I was never through Lime Wood Lane at all that day.  At one point I was through Redwood Lane.  When the CID come by our apartment, I told Big Charles that I know the two guys who were to the apartment. I told him they call one Ouncey and one name Forrester.  I also showed the CID where Ouncey live on Mid Shipment Road.  I also pointed out the red Suzuki car they was in, but the for sale was off.  The first time I saw Forrester was on Taino Beach on the holiday when he was involved in a fight, and one of my friends told me who he was.  Later I found that he had a brother, Ricardo, who used to go to Hawksbill school and Forrester used to be along with him.   I also Forrester sometime in the ghetto and downtown.  I don’t know his last name, but Larry Rolle have to call him uncle.  I also saw them to school together.  Me and Ouncey never had no drug deal nor Forrester.  This statement is true.”

In evidence at the trial Sgt McCoy said that Laing had referred to the appellant as Tiger, but that he had himself inserted the appellant’s correct first name of Forrester.  He also said that he had made editorial corrections to Laing’s earlier written statement which Laing fully accepted but was not asked to initial.

9.	 On the morning of 27 October, three police officers accompanied the appellant when he directed them to Peridot Place in Coral Gardens, where, according to the police evidence, he “ pointed out a grey apartment, which is the fourth apartment on the western side north of Coral Way and said, this is where I shot the man.” Later that same day Sgt McCoy showed the appellant a red Suzuki car and he said (according to the officer) that it was the car he and Ouncey had been in on the night of the killing.

10.	On 28 October 1992 the appellant was charged with the murder of Deon Roache and other offences.

11.	Mr Fayne Thompson gave evidence at the trial that he saw the appellant again on  28 October, when he had an assistant and a photographer with him. On that occasion according to Thompson’s evidence, he saw bruises on the appellant’s body and photographs were taken.  

12.	The appellant was arraigned before a magistrate, Mr Raoul Maynard, on 28 October 1992.  According to the magistrate’s evidence at the trial, it was his practice to make a note if any accusation of police maltreatment was made by or on behalf of any defendant appearing before him, and in such cases to have the defendant taken to hospital.  The magistrate’s record of this hearing contained no reference to any allegation of maltreatment.  Mr Fayne Thompson testified at trial that he had asked the magistrate to send the appellant to the hospital.  

13.	Two days later, on 30 October 1992, the appellant was examined in prison by Dr Sundaram.  The doctor’s notes of his examination were not available at the trial, but there was evidence from a police officer that he recorded the findings which the doctor made, and that record was available.  It read: “physical NAD abrasion (L) fore arm from alleged beating.”

14.	The appellant was first tried in November 1993, when the jury were unable to reach a unanimous verdict on the murder count.  The appellant was acquitted on counts charging him with attempted robbery and, it seems, a firearms offence.  A retrial of the murder count was ordered.

15.	There was considerable delay before the retrial took place.  The reasons for this delay were not investigated in either of the courts below, but evidence has been tendered to the Board on affidavit.  It appears that a number of matters contributed to the delay.  One was the establishment of a Supreme Court at Freeport, which caused some disruption.  Further disruption was caused when a judicial decision was made which invalidated committals to the Supreme Court, requiring all defendants to be re-committed (until the decision in question was reversed).  Further delay was caused when counsel appointed to represent the appellant found herself professionally unable to do so.  The appellant was released on bail in September 1994, but was arrested and remanded in custody in October 1995 when he was accused of committing a further murder and an attempted murder.  A voluntary bill of indictment was then preferred against the appellant charging him with the murder of Deon Roache, and the retrial eventually began in February 1997.  After a few days of hearing the jury were discharged following an allegation that the appellant had contacted a juror.  There was a further retrial in October – November 1997, but the jury were again unable to agree.  At a further trial before Allen J and a jury in the Supreme Court of the Bahamas, the appellant was on 25 February 1998 convicted.  It is this conviction which gives rise to the present appeal.

16.	At the outset of this trial an application was made to the judge to stay the proceedings as  an abuse of process.  This application was not based on the appellant’s right guaranteed by section 20 of the Constitution of the Bahamas to be tried within a reasonable time but on the policy of not bringing a defendant to trial after two disagreements and the oppression said to be inherent in bringing the appellant to trial for (ignoring the abortive trial in February 1997) a third time.  The trial judge rejected the application.  There was, she said, nothing in the law of the Bahamas which forbade a third trial.  She continued: 

“ On the particular facts of this case, I do not find that bringing prosecution on the third occasion in and of itself oppressive and an abuse of the process of this court. [Counsel] has not pointed to any specific reason why a third a trial will be oppressive or to any specific prejudice that the accused may suffer which would prevent him from having a fair trial.”

17.	The appellant denied making the oral statements attributed to him, and contended that he had signed the written statement (prepared for him by the police) following physical violence inflicted on him by the police and threats of further violence.  The voluntariness of the appellant’s written statement was investigated at a trial within a trial held over three days, at which the four police officers involved in the arrest and questioning of the appellant (including those against whom the allegations of violence and threats were made) and the magistrate before whom he was arraigned were called by the prosecution, and the appellant called several witnesses ( including Dr Sundaram and Mr Thompson) in addition to giving evidence himself.  The trial judge ruled that the appellant’s statement was admissible, giving detailed reasons for her conclusion.  She accepted the evidence of the officers that no force or threats were used against the appellant and no promises or inducements held out to him at any time.  She did not believe the appellant’s account of the treatment to which he said he had been subjected, and found the evidence called on his behalf to be either unreliable or supportive of the police.  She was satisfied beyond a reasonable doubt that there was no oppression used against the accused.  

18.	Mr Laing gave evidence at the trial along the lines of his first statement (as revised) and his second statement.  He was asked in chief about his acquaintance with the appellant: 

“Q.	The person you referred to as Tiger, how long had you known that person?	
 A.	I seen him, like, about two years.	
 Q.	What do you mean by that?	
 A.	I saw him on couple different occasions	
 Q.	And where did you see him?	
 A.	I see him by school, by my school.  I saw him downtown at the bus stop.  I saw him one time in the ghetto.	
 Q.	What is the ghetto?	
 A.	Its an area, Garden Villas.	
 Q.	What was the name of your school?	
 A.	Hawksbill High.	
 Q.	Were you complete?	
 A.	Yeah.  At one point I saw him at Taino Beach, too, one time.	
 Q.	How did you come to know him by the name Tiger?	
 A.	One time I saw him at Taino Beach and I was with a friend, I think they was in a fight.  And I ask my friend …..	
 Q.	And, Mr Laing, when you saw Tiger, can you tell us in whose company did you see him, or was he alone?	
 A.	I saw him with his nephew, Larry, and his brother, Ricardo.	
 Q.	This was at Taino Beach?	
 A.	No, this was by school, on the bus stop.	
 Q.	And what is Larry’s surname?	
 A.	Larry Rolle.	
 Q.	Do you know if Tiger resided in Freeport?…	
 A.	No, I don’t think he lived there.”	

19.	He was cross-examined about his confrontation with the appellant in the entrance area at the police station on 27 October and the questioning continued in this way:

 Q.	Where was it now prior to that time when you saw him, in October 1992 in Freeport, when was it that you seen him before?	
 A.	I can’t remember the exact time and date.	
 Q.	About how long before?…	
 A.	About two years.”	

In re-examination he reiterated that he always knew the appellant as Tiger. 
20.	Before the jury the prosecution adduced the evidence (in addition to that of Laing) of Dollymae Rolle, Mr Stubbs, Mr Maynard and all the officers who gave evidence on the voir dire, including Sgt McCoy who candidly described the manner in which Laing’s first statement had been amended.  

21.	At the end of the prosecution case counsel for the appellant submitted that there was no case fit to be left to the jury.  He based his submission on two grounds:
first, alleged deficiencies in the evidence of identification or recognition of the appellant; and secondly, on the ground of Sgt McCoy’s misconduct in amending Laing’s first statement.  Reference was made by the appellant’s counsel, in passing, to the contact between Laing and the appellant at the police station which counsel, again criticising Sgt McCoy, described as “highly suspicious, to say the least.”  The judge, in a fully reasoned ruling, rejected the submission.  On the first ground she held that there was evidence on which the jury could properly come to the decision that the accused was guilty.  On the second ground the judge accepted that the court had an inherent discretion to remedy any possible unfairness in a trial, which included reconsideration of a decision to admit a confession if the decision had been invalidated by further evidence before a jury.  But she rejected this ground also:

“ I do not consider that there is anything in the evidence of Sgt McCoy and Corporal Neymour before the jury which was not before me in the voir dire which affects in any way my decision to admit the statements.  There is one conflict in their evidence and I hasten to add that evidence was before me in the voir dire where one officer said at that time the door was open and the other closed.  In my view, no impropriety can be inferred from that without more.  

I do not accept that the evidence of Sgt McCoy, that he edited Fabian Laing’s statement, affects his credibility to the extent that his evidence relative to the statements taken from the accused must be withdrawn.  He sought to explain the circumstances in which it was edited, and it will be a question for the jury as to the reliability of his evidence in that regard and whether they can rely on his evidence, vis-a-vis the circumstances in which the statements were allegedly given by the accused.

In the circumstances, I do not find any good reason for a reconsideration of my ruling on the question of the voluntariness of the statements, and they will remain in evidence.”

22.	The hearing therefore continued.  The appellant made an unsworn statement from the dock but did not himself give evidence and so was not cross-examined.  He adduced the evidence of the photographer who had visited the appellant on the 28 October (although no photographs were produced), Mr Fayne Thompson, Dr Sundaram and the prison officer who had recorded the doctor’s findings at prison on 30 October 1992.

23.	The judge’s summing-up to the jury was, in the respectful opinion of the Board, a model of its kind, very clear, very accurate, very comprehensive and very fair.  She directed the jury on the proper approach to the statements of the appellant.  She gave a very full Turnbull direction.  She invited the jury to consider carefully the previous contacts between Laing and the appellant.  She drew specific attention to the weaknesses in Laing’s evidence.  She pointed out that Laing’s ability to identify the person who shot Deon Roache had not been tested by the holding of a properly conducted identification parade, and told the jury of the danger inherent in the identification of the appellant at the police station.  She concluded this passage by saying:
“Now, these are all matters which go to the quality of the identification evidence.  And if the quality of that evidence remains good throughout, then you may convict on it, as I have said, even if you find that there is no other evidence to support it.”

24.	The judge summarised the evidence in terms of which no complaint is made.  

25.	The appellant advanced three grounds of appeal against conviction.  As summarised by Zacca JA, giving the judgment of the Court of Appeal, these were:

“1.  The learned trial judge erred in law when she ruled that the appellant had a case to answer in that she misdirected herself as to the facts surrounding the issue of the identification of the appellant by the witness Fabian Troy Laing and consequently erred in her opinion as to the quality of the evidence.   

2.   The learned trial judge erred in law when she admitted both the alleged oral and written statements allegedly made by the appellant in that she 
disregarded the testimony of Fayne Thompson, John Saunders, Dr Sundaram and of the appellant himself with regard to injuries sustained by the appellant while in police custody.  

3.   The verdict of the jury was unreasonable and could not be supported
having regard to the quality of the evidence.”

26.	In support of the first ground the appellant criticised the evidence of Laing, relying in particular on his failure to mention “Tiger” in his first statement, the reference to “Forrester” in his second statement, the confrontation at the police station on 27 October 1992 and the emendation by Sgt McCoy of Laing’s first statement.  In his judgment Zacca JA referred to Sgt McCoy’s evidence on the emendation  of the statement and recited the answers given by Laing in cross-examination about his acquaintance with the appellant.  He then said:

“In these circumstances, it was necessary for an identification parade to have been held and the identification by the witness at the CID office can only be described as a deliberate confrontation.  We are in agreement with [counsel for the appellant] that the identification by Laing that the appellant was the man who shot the deceased was therefore unreliable and weak.  

The learned trial judge properly directed the jury on the issue of identification and pointed out the weaknesses in the evidence.  If this was the only evidence in the case, the trial judge would have been obliged to take the case away from the jury.  However, having ruled that the statements were admissible, it was proper for her to leave the case for the consideration of the jury.”

27.	Having reached that conclusion,  the Court of Appeal regarded the question of the admissibility of the appellant’s statements as of paramount importance.  It concluded that the reasons and ruling of the judge on that issue could not be faulted.  It was further of opinion that “despite the unreliability of the identification evidence, once the statements are held to be admissible, it cannot be said that the verdict of the jury was unreasonable and contrary to the evidence.”

28.	The appeal was accordingly dismissed.

29.	In his appeal to the Board the appellant submitted that the trial judge should, at the end of the prosecution case, have revoked her decision to admit the statements made by the appellant.  This was because Sgt McCoy had been shown to be a dishonest and unreliable witness, whose reliability had been undermined and whose evidence had been shown to be tainted to the point where the jury could not properly be allowed to consider it.  This was the result, it was argued, of McCoy’s admission that he had amended Laing’s first statement and of the  Court of Appeal’s finding that the encounter between Laing and the appellant at the police station could only be described as a deliberate confrontation.  

30.	In the opinion of the Board this submission must be rejected.  McCoy’s evidence was that he amended Laing’s first statement to reflect more accurately what Laing intended to say.  There was nothing to contradict McCoy’s assertion that Laing agreed to these changes.  This was not a case of concocting or falsifying Laing’s evidence, or of putting words into his mouth.  There was no concealment of what had been done.  At most it can be said that McCoy failed to ask Laing to initial the amendments, as good practice would have indicated.  But it cannot be suggested that this undermined his honesty or reliability as a witness.
	
31.	The evidence of both McCoy and Laing was that the encounter between Laing and the appellant on 27 October took place when Laing happened to be waiting in the entrance area and the appellant happened to be taken through that area to the bathroom.  McCoy rejected the suggestion that he had deliberately arranged this encounter.  Nothing in the evidence of Laing suggested that he had.  There was no evidence at any stage to suggest that the appellant’s visit to the bathroom was a false pretext invented to enable a meeting between Laing and the appellant to take place.  There was no evidence which entitled the Court of Appeal to conclude that the confrontation had been deliberately arranged.  At the trial, counsel did not suggest that the circumstances were more than “highly suspicious.”  Whether the suspicion was justified was a question eminently suitable for the jury’s consideration.

32.	By the end of the case the appellant’s challenge to the voluntariness of his written statement was threadbare.  He had not given sworn evidence to the jury to support the challenge.  His supporting evidence was extremely weak.  There was no evidence at all to controvert the evidence of the police that he identified the scene of the killing and the red Suzuki car.
	
33.	The appellant’s second main submission related to the evidence of identification or recognition and was largely founded on the findings of the Court of Appeal: there should have been (but had not been) an identification parade; there had been a deliberate confrontation; the evidence of identification of the appellant was “unreliable and weak”; the jury should not have been permitted to convict on the evidence of identification alone.  The judge was accordingly wrong to direct the jury that they could convict on the identification evidence before them even if they found there was no evidence to support it.  The possibility existed that the jury might have done so.  The conviction was accordingly unsafe.  

34.	The Board accepts and strongly endorses the view of the Court of Appeal that where evidence of identification or recognition is disputed an identification parade should ordinarily be held if it is practicable to do so and the suspect is willing to participate.  The House of Lords recently had occasion to consider this matter, although with reference to Code D of the codes issued under the Police and Criminal Evidence Act 1984, in R v Forbes [2001] 2 WLR 1, and the Board shares the general views there expressed.  But it is necessary to examine the facts.  When Sgt McCoy on 24 October 1992, having received information from an informer, decided that an identification parade was unnecessary his decision may have been wrong.  But it was on any showing premature, since no suspect had been found and no issue on identification had arisen.  When the appellant was arrested, if the police evidence is believed, he admitted participation so no issue on identification arose.  If the police evidence is doubted, a potential issue on identification did arise.  But the very next day Laing made an unequivocal identification of the appellant in circumstances already described, after which an identification parade was most unlikely to assist the appellant.  Even accepting that an identification parade should have been held, and the appellant never asked for one, the judge was entitled to invite the jury to assess the evidence as it stood with the benefit of an appropriate warning, which she gave.  Had there been clear evidence of malpractice by Sgt McCoy it might very well have been appropriate to exclude evidence of the confrontation, but there was no such evidence for reasons already given.

35.	The Board respectfully disagrees with the Court of Appeal’s description of the identification evidence as “unreliable and weak”.  This was a recognition case.  Laing said from the outset that he recognised both intruders and he named one of them.  The appellant’s name and nickname were not given in Laing’s first statement, although he thought he had mentioned the name “Tiger” to the police at the time.  It is not in doubt that, within hours of the shooting, the police were looking for the appellant.   The evidence of Dollymae Rolle clearly identified the appellant as one of the men in the red car which Laing had seen.  Stubbs provided some further confirmation.  When the appellant was arrested he made a statement which, if accepted as authentic, disclosed that he knew Laing well.  If the statement is not accepted as authentic, there was still evidence from Laing (not fully summarised by the Court of Appeal) that he had seen the appellant from time to time over the years, sometimes in the company of his brother and his nephew, who had to call him “Uncle”.  Laing immediately identified the appellant on  27 October 1992.  In the opinion of the Board the trial judge was not only entitled but right to direct the jury that they were entitled to rely on the identification evidence alone if, having considered her very careful direction, they thought it right to do so.  It would not have been right to withdraw this issue from the jury.  

36.	Counsel for the appellant realistically recognised the difficulty of submitting that these proceedings were an abuse of process on the grounds of delay alone.  The delay of three and a quarter years between the first trial and the second (abortive) retrial, although long, was not inordinate; an explanation of that delay had been given, not suggestive of misconduct by the prosecuting authorities; the appellant had been at liberty for over a year during that period; his own conduct might well have contributed to the delay; and the delay had in no way prejudiced his defence.  Instead, counsel submitted that it was oppressive and so an abuse of the process of the court to put the appellant on trial for a third time on a capital charge.  This submission was based not on the particular facts of this case but on the oppression said to be inherent in such a practice.  

37.	It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree (see Archbold, Criminal Pleading and Practice, 2001, paragraph 4 –440).  But that is no more than a convention, as recognised by the Court of Appeal (Criminal Division) in R v Henworth (unreported, 19 January 2001).  It may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction.  It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations,  the public interest is better served by offering no evidence or by seeking a further retrial.  There is plainly no rule of law in this country which forbids a prosecutor from seeking a second retrial.  In the present case the trial judge ruled that this was so in the Bahamas also, and her ruling on that point was not challenged in the Court of Appeal.  

38.	There may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust.  The Board judged Charles v The State [2000] 1WLR 384  to be such a case.  But it was there recognised (at page 390 G) that the trial judge has a margin of discretion, and in Persad and Jairam v The State (unreported, 24 January 2001) the Board remitted the issue of retrial to the Court of Appeal of Trinidad and Tobago treating it as relevant but not conclusive that it was a second retrial.  

39.	Whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served.  Full account must be taken of the defendant’s interests , particularly where there has been long delay or he has spent long periods under sentence of death or if his defence may be prejudiced in any significant way by the lapse of time.  Account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system.  These are matters which a national court is well – placed to consider.  The Board is for obvious reasons much less well – placed.  Here it has no guidance from the Court of Appeal, since that court was never invited to address the issue.  The Board does not feel entitled to rule that there may never properly be a second retrial in a capital case, irrespective of the facts.  It notes that the New Zealand High Court declined to stay a third trial for murder in R v. Barlow [1996] 2 NZLR 116 (although the charge was not capital).  The consequences of conviction in a capital case are of course grave and irreversible, but that is because the crime found to have been committed is judged by the state in question to be particularly heinous.  The appellant may exercise any right he has to seek the exercise of mercy, or any constitutional relief which may be available.  But the Board cannot hold that this trial was unlawful on the grounds of oppression or abuse.

40.	The Board will humbly advise Her Majesty that this appeal should be dismissed.