Rahming v R (Bahamas) [2002] UKPC 23  (4 December 2001)

	Privy Council Appeal No. 33 of 2001

Philip Joshua Rahming	Appellant
	v.
The Queen	Respondent

	FROM

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

	REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL, OF THE 
	4th December 2001, Delivered the 20th May 2002
	------------------

	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Steyn
			Lord Hutton
			Lord Hobhouse of Woodborough
			Lord Rodger of Earlsferry
		  	[Delivered by Lord Hobhouse of Woodborough]
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1.	At the conclusion of the hearing on 4 December 2001 their Lordships agreed humbly to advise Her Majesty that the appeal ought to be allowed, a conviction for manslaughter substituted and the case remitted to the Court of Appeal for determination of sentence, and that they would give their reasons later.  This they now do.

2.	This is an appeal, pursuant to special leave given by their Lordships’ Board, from a decision of the Court of Appeal of The Bahamas upholding the conviction on 23 April 1997 in the Supreme Court Nassau of the appellant, Philip Joshua Rahming, for the murder of Theresa Albert.  (It appears that there had been an earlier trial which was aborted after the appellant had dismissed his counsel.) 
3.	The circumstances which led to the appellant’s conviction were briefly as follows.  On Saturday 20 May 1995, early in the afternoon, Theresa with her two younger sisters Nadia and Yvette and her daughter Valentina went to visit the appellant (then aged about 31) who lived near their home in Meeting Street Nassau and asked him to give them a lift into town in his car as they wished to go shopping.  He agreed.  At one point Theresa was left in the car with the appellant while Nadia and Yvette went into a shop to buy a pair of shoes.  On her return to the car, Theresa said to Nadia: “He asked me for my body”.  The appellant interjected: “Nadia, do you believe that”.  On the way back, when they were getting near to where the girls lived, the car stalled and the girls got out to walk home.  However, Theresa went a different way to the others.  She said that she wanted to avoid meeting her friends.  As they walked away Nadia noticed that the appellant had restarted the car and was driving alongside Theresa rapping to her.  That was the last time they saw Theresa.

4.	Later the same day, at about 5.00 pm, the appellant came to the girls’ home to collect from Nadia a dollar which he had lent her during the shopping trip.  According to the evidence at the trial, he had fresh scratches all over his face and what looked like a bite on one of his fingers; the wounds were dripping blood.  He had not had any visible injuries earlier in the day.  He told the girls that he had got his injuries playing basketball.  Later that evening, when Theresa had not returned, the girls started looking for her.  They went to where the appellant lived but got no answer.  The next morning they went again to the appellant’s apartment.  Again there was no answer but they went in and saw the appellant bare chested with what they described as grab wounds on his chest which had not been there when they had seen him without his shirt on Saturday.  Asked by Yvette if he was all right, he replied that he had got the injuries during a gambling game.  He said that he had not seen Theresa.  They asked him to come with them to the police but he refused. Theresa’s disappearance was reported by Theresa’s mother.  

5.	On Monday evening, the appellant went voluntarily to the police station and was arrested and (according to the police) cautioned.  He told the arresting officer that he had got his injuries on Saturday evening while being robbed.  Later on Monday evening, two police officers spoke further to the appellant.  He said he had not seen Theresa since dropping her off on Saturday.  They noticed that he had scratches on his arms and what looked like a bite.  He said that he had been beaten in the course of a robbery which he had reported.  The next morning, Tuesday, the appellant was taken to the hospital where he saw a doctor who examined his injuries.  They were recorded as being bite marks to his cheeks, scratches to his left cheek, the left side of his neck and to his chest and his back and his arms. 

6.	He was later interviewed under caution by two officers.  He said he had been involved in an argument in Meeting Street with Theresa and had fought with her.  She fell to the ground unconscious.  He left her there thinking that she would come round and go home.  The appellant took the officer to the place in some bushes in Meeting Street where he said she had fallen but they could find no body.  Back at the police station, he said that during the fight another man, Jeffrey Brooks, had come up and started to beat her.  She fell unconscious.  They left her but returned later and put the body in a blue sheet.  He again gave the police a location in Meeting Street but no body could be found.  Then he told them that they had taken the body to Skyline Drive and dumped it in some bushes there.  The appellant took the police to the spot and the decomposing body of Theresa was found.  It was only partially clothed.  This occurred at about 8.35 pm on Tuesday.  The following afternoon, in a fourth interview, the appellant said that Jeffrey Brooks had not been involved on the Saturday.  At about 6.00 pm on the Wednesday, the defendant was charged with Theresa’s murder.  He was not brought before the magistrate until the morning of Saturday the 27th; the appellant later contended that his constitutional rights were thereby infringed.

7.	The appellant chose to defend himself at his trial.  He did not give evidence but made an unsworn statement from the dock. This statement sought to contradict the police evidence.  What he had said in interview was the result of his being beaten and threatened by the police.  He did not tell the police that the body had been dumped at Skyline Drive.  It was the police who took him there after they had already found the body.  “At no time did I volunteer information to the officers of my involvement or my knowledge with regard to Theresa Albert’s disappearance and her murder”.

8.	The prosecution case at the trial was based upon the confession evidence corroborated by the finding of the body and its state when found and the circumstantial evidence coupled with the evidence of the appellant’s interest in Theresa and his injuries and the lack of any satisfactory alternative explanation for them other than that they had been inflicted in a struggle with Theresa. The appellant took the point at the outset of the trial that the delay in bringing him before a magistrate should result in the stay or dismissal of the case.  The judge, Osadebay J, ruled against him.  He challenged the admissibility of the confession evidence on the grounds that the confessions were not voluntary.  The judge held a voir dire in which the appellant took a full part, cross-examining the police witnesses, making an unsworn statement and calling Jeffrey Brooks.  The judge ruled that the confessions were admissible; he did not however allow the prosecution to put in evidence a record of interview which had not been signed by the appellant.  On the resumption of the trial, the prosecution called the police witnesses and the two sisters. They also called forensic evidence which was inconclusive although there was evidence that Theresa kept her finger nails long and material was found under her nails and that she had been killed by a heavy blow to the head administered with some blunt instrument or weapon.  They called a witness, Karen Colebrook, who said that she had been with the appellant between about 3.00 am and 5.30 am on the Sunday morning. She also said that she had seen a “grab” on his neck and he was bleeding from his hand.  The conduct of the trial was fair.  The appellant appears from the transcript to have been fully capable of representing himself and to have raised and developed the defences upon which he wished to rely and was able to take advantage of the procedures open to him.  

9.	On his appeal to the Court of Appeal, the appellant was represented by counsel.  The grounds of appeal related to the rulings made by the judge and his summing up.  Counsel criticised the judge’s ruling that the confessions were admissible. The relevant statutory provision is section 20 of the Evidence Act 1996 of The Bahamas which includes:
“(2)	If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession –

(a)	was or may have been obtained by oppression of the person who made it; or

(b)	is rendered unreliable by reason of anything said or done or omitted to be said or done in the circumstances existing at the time,
		
the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”

The Court of Appeal rejected this ground of appeal.  The judge had held a voir dire and had accepted the police evidence.  He was entitled to be satisfied in the terms of the subsection and that the confessions were indeed voluntary.  The Court of Appeal rejected criticisms of some of the wording used by the judge as recorded by the court reporter: the judge had not misdirected himself.  The Court of Appeal also rejected the second ground of appeal.  It was argued that the evidence did not exclude that the killing was anything more than manslaughter; that the judge’s summing-up on the definition of manslaughter was inadequate. The Court of Appeal pointed out that the appellant’s defence was that he had had nothing to do with Theresa’s death; he did not rely upon any defence of manslaughter; but the judge did (unnecessarily in the view of the Court of Appeal) leave the question of manslaughter to the jury and they returned a verdict of murder.  The other grounds of appeal concerned the treatment of the evidence of the appellant’s mother and the direction given upon burden and standard of proof in relation to circumstantial evidence.  The Court of Appeal concluded that there was no merit in either of these grounds of appeal nor in any of the other minor points which were argued.  Their overall conclusion was that the facts of the case were important and the case for the prosecution was an exceptionally strong one.

10.	On the appeal to their Lordships’ Board, the appellant represented by Mr Wood QC and Mr Metzer, to whom their Lordships are indebted for their assistance, based their main grounds of appeal upon criticisms of the judge’s summing-up. They submitted that his legal directions upon the crimes of murder and manslaughter were inadequate, that he failed to give the jury a lies direction, and that his directions to the jury upon the disputed confession evidence were inadequate.  They also raised a supplementary argument relating to the alleged breach of the appellant’s constitutional rights as a result of the delay in bringing the appellant before a magistrate.
11.	Their Lordships can take this supplementary argument first.  The constitutional provision is: “No person shall be deprived of his personal liberty save as may be authorised by law ... upon reasonable suspicion of his having committed … a criminal offence.  ... Any person who is arrested or detained in such a case ... and who is not released shall be brought without undue delay before a court ...”. (Section 19 of the Constitution). Section 17 of the Criminal Procedure Code provides that a person under arrest shall, unless earlier released on police bail, be taken before a magistrate within 48 hours of his arrest.  The 48 hour period was considerably exceeded in the appellant’s case.  He had originally been arrested on the evening of the Monday and he was not taken before a magistrate until the Saturday morning. He had been charged with murder on the Wednesday evening; thereafter neither the police nor the magistrate had the power to release him on bail.  The police had an explanation of why the appellant had not been taken to court on the Friday.  Before he was charged, all the interviews had taken place and the appellant had, on the police evidence, taken them to the place where he and Brooks had dumped the body.  There was no evidence of any abuse of process nor of any actual prejudice to the appellant who was bound to be held in custody as he was charged with murder. He may have had a claim for the infringement of the duty to bring him before a court within 48 hours but it did not affect the propriety of the criminal proceedings against him.  The judge was right to reject the submission that that delay could provide a ground for stopping his prosecution on this charge.  Counsel submitted to the Board that the judge should have directed that the failure to bring the appellant before a court earlier affected the weight of the prosecution evidence in the same way as might the breaches of the codes of practice under the UK Police and Criminal Evidence Act 1984.  Whilst there might well be cases where this analogy would be appropriate and it could be said that the failure affected the evidence or its admissibility or had prejudiced the accused in some way or had affected the fairness of the proceedings, nothing of that kind can be said about the present case.  The judge was right in the present case to say: “It may be that their understanding [ie that of the police] of the Criminal Procedure Code is wrong but the issue in this case is really was Theresa Albert murdered and who did it.  That’s really the issue”.  The judge however did go on briefly to remind the jury that the appellant had used the point to attack the credit of Inspector Bethel and encouraged them to take it into account in that connection.   
12.	Turning to the submission that the judge should have given the jury a Lucas direction, the point was that the appellant had given conflicting explanations for his injuries, initially, to the sisters on the Saturday evening, a ball game and the next morning a gambling game and thereafter, to the police, a robbery.  It was the prosecution case that none of these explanations was correct and that he had been injured by Theresa as she attempted to defend herself.  At the trial the appellant did not give evidence nor did he cover this aspect in his unsworn statement.  The question whether or not the explanations were lies was bound up with the question whether the appellant had been fighting with Theresa.  The prosecution did not rely upon the telling of lies as supporting an inference of guilt but they did rely upon the occurrence of the injuries after the time that Theresa had last been seen alive as corroborating the appellant’s confessions. Counsel cited the judgment of the English Court of Appeal in R v Burge and Pegg [1996] 1 Cr App R 163 in which the relevant authorities were considered, including R v Lucas 73 Cr App R 159 and R v Goodway 98 Cr App R 11.  The judgment emphasises that a Lucas direction is not always required even though it is the prosecution case that the defendant has lied. “How far a direction is necessary will depend upon the circumstances”  (p.172).  “Our view is that the direction on lies approved in Goodway comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused: in effect, using it as an implied admission of guilt” (ib).  “If a Lucas direction is given where there is no need for such a direction (as in the normal case where there is a direct conflict of evidence), it will add complexity and do more harm than good” (p.173).  In the present case the judge was entitled to take the view that a Lucas direction was not appropriate or required.  The prosecution adduced no evidence as to the truth or falsity of the appellant’s explanations of his various injuries save for one exception, the statement of Sergeant Cox that he had checked with Grove Street police station whether the appellant had made a report of a robbery to them.  This was a peripheral point and had not been supported by any direct evidence.  Their Lordships are of the view that to have given a Lucas direction would not have benefited the appellant nor added to the fairness of the trial. 

13.	Turning to the points made by counsel in relation to the judge’s treatment of the confession evidence, the thrust was that the judge should have adopted a more analytical approach in reminding the jury of the police officers’ evidence: whether the jury were satisfied that the confessions were in fact made; whether they were the result of coercion; whether the confessions were consistent with each other and with the other evidence such as the timing of the observations of injuries on the appellant. These criticisms overlook the fact that the essential point was whether or not the jury was satisfied that the police evidence was truthful and reliable and in this it stood or fell as a whole.  The jury were correctly directed upon the burden and standard of proof.  If the jury were not satisfied that the confessions were made and that they were voluntary and reliable, the jury would not have convicted.  Similarly, they had to evaluate what the confessions amounted to.  Because the appellant’s account varied, particularly as regards the role of Brooks, the jury had to consider whether the confessions led them to be satisfied of the appellant’s guilt.  The review of the evidence in the summing-up was fair and sufficient.  This was not a case calling for a detailed analysis.  The judge made clear to the jury that they should not convict unless they accepted the police evidence. 

14.	This brings their Lordships to the more substantial ground of appeal whether the judge’s directions upon the legal constituents of the crime of murder were accurate and sufficient.  Before the Court of Appeal, the appellant argued that the direction on manslaughter was defective: before the Board, whilst not abandoning their criticisms of the directions on manslaughter, the primary submission has been that the direction on murder was at fault.  The crimes of manslaughter and murder are defined in the Penal Code of The Bahamas:
“310.	Whoever causes the death of another person by any unlawful harm is guilty of manslaughter.  If the harm was negligently caused, he is guilty only of manslaughter by negligence. 

 311.	Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless the crime is reduced to manslaughter by reason of extreme provocation, or other matter of partial excuse, as in this title hereafter mentioned.”

Also relevant is the evidential provision section 11(3) in Part II of the Code:
“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, until it is shown that he believed that the act would probably not cause or contribute to cause the event.” 

Section 11(3) is an evidential provision.  It does not mean that it suffices for the commission of the crime of murder that the defendant was reckless: Dean v R [1989-90] 1 LRB 534. Intentionally causing the death of another is an essential ingredient of murder although in discharging this burden of proof the prosecution can rely upon a rebuttable evidential presumption of fact under s.11(3) in the same manner as the proof of primary facts may lead to the inference of a further fact.  This is, after all, the normal way in which intent is proved. 

15.	In the present case, the judge directed the jury in the following terms (pp.423-5 of the record):
“First of all the prosecution have to prove to you that Theresa Albert, the victim was killed within a year and a day. ... Secondly that the death of Albert, Theresa Albert, was caused by an unlawful bodily harm inflicted, that's the second point.  Thirdly, that the harm was intentionally inflicted, that is that it was deliberate, it was unprovoked. And, fourthly, that it was the accused, the defendant, who inflicted the unlawful  harm, unlawful and intentional harm to cause the death of Theresa Albert.
  
As I explained to you, the basis of murder in our law is rooted in Section 311; our law states that, ‘Whoever intentionally causes the death of another  person by any unlawful harm is guilty of murder’.  Unless, of course, the crime is reduced to manslaughter by circumstances which I will explain to you in due course. Therefore, in our law if a person uses reckless, what you would describe as reckless, violence which may cause death -- as I list these you heard the evidence of the findings of the doctor what caused the victim's death. And if that person uses the reckless violence and death occurs, then it may be inferred under the law in the absence of any evidence to the contrary that the person who used, that person who used the violence, if he had used reasonable caution and observation, it would have appeared to him or her that such an act would probably cause death.  If such an inference is drawn by you the jury, that the person is, that person is to be presumed to have intended to cause the death of the victim unless it be shown from the evidence, all the evidence, that that person believed that such an act done by them would probably not cause death.

You get a situation where people are fighting and one person slaps the other or throws a blow at the other with their fist, the person eventually probably dies, you know, because of something internal in them.  You may infer that when you look at the facts of the throwing of the blows say to yourself that kind of blow that person might have intended to throw the blow but not necessarily that the blow would lead to the death of that person because they just throw their blow with a fist.  

It is for you, members of the jury, to consider the evidence given by the prosecution in this case.  And also the evidence from the defence and decide whether the injury received by Theresa Albert on the day in question, which injury finally caused her death, was intentionally and unlawfully inflicted by the defendant. That is what your duty is.  You have to consider the evidence and decide on that.  If you, after considering the evidence, both evidence of the prosecution and the defence, including the statement of the defendant from the box, if you believe that the defendant used reckless violence which may cause death, and that having done that, death occurred, then you may properly infer in the absence of any evidence - any indication to the contrary - that the defendant, had he used reasonable caution and observation, it would have appeared to him that that act would have caused the death of the victim.  If you draw that inference, then in that case it will be presumed in law the defendant would be presumed to have intended to cause the death of the victim, unless upon examination of the whole evidence you come to the conclusion that the defendant believed that his act would not have caused the death.” 

16.	There are two particular aspects of this direction which their Lordships would emphasise.  The first is that at the outset it does not appropriately distinguish between an act done with the intention of causing unlawful bodily harm and an act done with the intention of causing death.  Thus the judge told the jury (as his third ingredient) that it must be proved that “the harm was intentionally inflicted”.  His fourth ingredient, although it refers to the infliction of unlawful and intentional harm to cause the death of Theresa Albert, does so in the context of proving that the defendant was the assailant whose act caused the death of the victim.  The direction may have led the jury to believe that the relevant question was whether the blow which caused death was accidental or not.  The second aspect is that the judge, in dealing with the effect of section 11(3), refers twice to “reckless violence which may cause death”.  This language and other parts of the passages which their Lordships have quoted would leave the jury with the impression that a reckless killing would suffice in law for the commission of the crime of murder.  As was pointed out in Dean v R (sup.) any murder direction which suggests that a reckless killing suffices is a misdirection.  The judge came back to the same point late in his summing-up (at p.461 of the record) and said in relation to murder: “There must be an intention to kill or somebody uses reckless violence which they understand could cause death and knowing that it would [sic] cause death they went ahead and used it” (emphasis supplied).  This again suggested that the use of reckless violence suffices as an alternative to an intentional killing.

17.	In their Lordships’ opinion these directions on the crime of murder risked a confusion in the minds of the jury between the ingredients of the crime of murder and that of manslaughter and risked the jury returning a verdict of guilty of murder when they were only satisfied that the killing must have been reckless and ought to have returned a verdict of guilty of manslaughter.  The trial judge considered upon the evidence that he ought to leave to the jury the alternative of a verdict of guilty of manslaughter. Their Lordships, notwithstanding the view expressed by the Court of Appeal, can understand why he should have taken this course.  The confession evidence which was an essential part of the prosecution case spoke of there having been a fight which led to the death of Theresa.  The autopsy evidence was that she had suffered a very severe fracture of the skull which was the cause of her death and which would require a severe blow to create that type of injury.  There clearly was evidence upon which the jury could properly have found that the killing was murder not manslaughter but it cannot be said that that conclusion was the only one open to the jury.  It was not a case like Dean, where the victim had in the course of a robbery been shot twice in the chest at a range of only six inches, or Fazal Mohammed v. The State [1990] 2 AC 320 where the victim’s throat and neck had been severed back to the level of the cervical vertebrae.
18.	The appellant’s arguments upon the judge’s direction as to the crime of manslaughter do not arise.  The jury returned a verdict of guilty of murder and must therefore have been satisfied that the appellant had unlawfully killed Theresa.  On the judge’s directions, they must have been satisfied that he was at least acting recklessly.  It is therefore a necessary inference that the jury were satisfied of the requisites of the crime of manslaughter.    
19.	In view of their Lordships’ conclusion that the direction on murder was defective, their Lordships have humbly advised Her Majesty that the verdict of guilty of murder should be quashed and a verdict of guilty of manslaughter should be substituted. Their Lordships have further advised Her Majesty that, the appeal having been allowed to that limited extent, the case should be remitted to the Court of Appeal so that the appellant can be sentenced accordingly.