Murphy v. R (The Bahamas) [2002] UKPC 3 (22 November 2001)

	Privy Council Appeal No. 34 of 2001

Marvin Murphy	Appellant
	v.
The Queen	Respondent

	FROM

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

	REASONS FOR REPORT OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE
	22nd November 2001, Delivered the 31st January 2002
	------------------

	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Mustill
			Lord Scott of Foscote
			Sir Andrew Leggatt
			Sir Philip Otton
		  	[Delivered by Sir Philip Otton]
	------------------

1. 	At the conclusion of the hearing on Thursday, 22nd November 2001 their Lordships agreed humbly to advise Her Majesty that the appeal should be allowed, the appellant’s conviction quashed and that they would give their reasons later. This they now do.

2. 	This is an appeal by special leave against the decision of the Court of Appeal of the Commonwealth of the Bahamas dated 19th January 1995 dismissing the appellant’s appeal against the conviction on 13th May 1994 (before Mr Justice Hall and a jury) of burglary and armed robbery.  

Background
3. 	The incident which led to the proceedings occurred at about 4.00 a.m. on the morning of 18th September 1990. The complainant, Mrs Pacherlee Bullard was asleep and alone in her apartment when she was awakened and saw a young man standing at the foot of the bed and aiming an object which she believed to be a handgun at her face.  She screamed whereupon her assailant told her not to scream or he would kill her.  He extracted items from her jewellery box.  He went through the bedroom, called her to unlock the front door and asked where her husband was. He ignored her pleas to leave and made what she took to be a sexual advance.  A struggle ensued during which the man hit her about the head and left.

4. 	The police were called to the apartment and the complainant gave a description of her attacker which was probably recorded in a statement.  There is no record of what she said during the visit but the Crown accepts that she did give a description on this occasion.  The apartment was also tested for fingerprints but no prints were found to connect the appellant to the premises.

5. 	An unusual feature of the case was that the complainant was asked to attend two identification parades.  The precise timing of the parades is not now clear but the first probably took place during the morning of the 1st November.  A number of males were placed in line – but not including the appellant who had by that stage not been arrested.  Ms Bullard did not identify her assailant.  Later that morning the appellant was arrested and detained in custody.  A second parade was held at about noon after the arrest.  The appellant stood in line alongside eight other men of similar appearance.  The complainant having examined the line asked that the appellant be allowed to put on a baseball cap.  The senior officer conducting the parade required all the men to try on the cap.  At the conclusion Ms Bullard pointed out the appellant saying “That looks like him”.

6. 	At 8.00 p.m. on the same day the appellant orally confessed to DC Rolle and later confirmed in a written statement which he signed that he had been in the apartment and committed burglary.

7. 	The Preliminary Hearing before the examining magistrates began on the 28th June 1993, more than 2½ years after the incident and the identification parades.  During her evidence in chief the claimant purported to identify as her assailant the appellant who was standing in the dock.  He is 5ft 8in in height. When cross-examined by the appellant, who was unrepresented, she confirmed that the police had come to her house.  She was asked:
“Q.	Did you give the police a description of the man?
  A.	I did.
  Q.	What was the description you gave the police?
  A.	Tall and slim.  Not too dark.
  Q.	Just tall and slim?
  A.	I can’t recall.  I think at the time he was wearing short locks.”

8. 	DC Rolle did not attend the scene and never took a statement from the complainant but became the officer in charge of the case at a later stage.  His evidence in chief was confined to what occurred in the police station when the appellant confessed to the offences.  However the appellant in cross-examination asked:
“Q.	Did the complainant give you a statement?
  A.	A statement was given by the complainant.  Not to me but by other officers.
  Q.	Did you examine the statement?
  A.	Yes, the contents of the statement was examined.
  Q.	Did the complainant identify me by name or person?
  A.	The description that was given.
  Q.	What was the description the complainant gave you all?
  A.	The description that was given fits you.
  Q.	What was the description?
  A.	The description given by the complainant was a male.  He was about five feet 7 inches, medium built, dark complexion.  She also said that this culprit had an odor to his breath.”

9. 	The trial commenced on 12th May 1994 (3½ years after the incident).  The appellant was again unrepresented.  At the outset the learned judge checked that the appellant had a copy of the depositions.  The complainant described what happened and counsel for the prosecution asked:
“Q.	Can you give us some idea as to – can you give us a description of this person?  I know you said the light from the outside was coming on you.
  A.	He was young, slim, about six or seven feet tall, not too dark”.

The learned judge expressed doubt as to the value or purpose of such questions and observed:
“THE COURT:  I have often wondered about the value of this set of questions, Mr Newbold.  What is it capable of proving?  I assume if the prosecution has evidence of identification, it would lead it.  It isn’t particularly helpful to lead evidence, even if a witness purports to have been in a position to identify a perpetrator of an offence at the time, because it is of no evidential value.  The accused is always present in court.  The only purpose it would serve is if it is going to be contradictory.  You can proceed directly to such evidence as you think you have.
…
If there is a contradiction, then by all means, a description is different from any subsequent description that she gave, that is relevant.  It means, there was a seven foot tall white man in her house, the jury sees that such description could not be the accused.  If you are merely seeking to lead evidence to describe the person, what purpose does it serve?”

There the matter was left.

10. 	The appellant began his cross-examination by asking the complainant whether she had made a statement to the police when they came to her apartment.  She confirmed that she had.  He asked her:
“Q.	Did you give to the police a description of the person who you think commit this offence?
  A.	Yes.
  Q.	What was the description you give the police”

The trial judge intervened:
“THE COURT:  Well, you remember that I stopped Mr Newbold.  And I’m going to stop you for the same reason. There is no point asking a witness to give evidence which, without more, is of little use to the jury, because what the jury may consider is that there she was, there you are.  Any description that she gives, even without any intention on her part not to mislead, would be affected by what she is seeing in court.

The second thing is this:  If the description which she, in fact, gave is not inconsistent with anything else, then there is another rule that prohibits that type of evidence.  It’s the rule against self-corroboration.  There is no point in bringing in a trial what the witness said on another occasion.  The jury is only concerned with what a witness says in the witness box.  It is only if what a witness says on a previous occasion is different, then you can then attack that witness’ credibility or credit.  Do you follow me?

THE ACCUSED:	Yes.

THE COURT:  Do you have reason to believe that the description that she gave to the police is different from what she is now saying?

THE ACCUSED:	Yes, sir.”

The judge then asked the appellant whether there was anything in the depositions to suggest that there was inconsistency.  The appellant clearly did not understand the word “deposition” or the significance of the judge’s questions.  The exchange concluded:
“THE COURT:  Are you in a position to challenge her as to the description that she would have given to the police?  Is there something in the depositions, for instance?

THE ACCUSED:	No, sir.

THE COURT:  There is no point in asking her what description she gave to the police.

THE ACCUSED:	All right, sir”.

11. 	DC Wright described how when he went to the apartment he saw damage to the louvered windows.  In cross-examination the appellant tried again to elicit the complainant’s description of her assailant:
“Q.	Did the complainant give you a description of the person that entered her place?

  A.	Yes, she did.

  Q.	What was the description of the person?

THE COURT:  I’m not going into the reasons why, but it’s the same as before why he can’t answer that question.”

The appellant tried again at the end of his questioning:
“Q.	Could you produce the original statement that you get from the court and turn it over in evidence?

THE COURT:  I think I have explained it as simply as I could.  Maybe I’m deficient in my ability to explain.  I’ll keep repeating it until you understand.  It doesn’t matter what she said unless you are in a position to say that what – she has left the box now.  What we are dealing with is a contradictory statement.

This jury is not concerned with what some witness said on another occasion unless you are in a position to say that she said it was a seven foot man weighing 300 pounds who spoke with a Norwegian accent.  That would be markably different from any police investigation that led to you. That would be a significant departure from anything that she would have purported to do later in an identification parade.  Apart from that, what she said in terms of identification is not admissible.”

12. 	Thus the trial judge in effect prevented the appellant from eliciting the initial description in evidence.  Prosecuting counsel did not disclose the description in the statement nor give the appellant a copy of the statement.  He did not hand it to the trial judge or invite him to read it.  Moreover, the trial judge did not ask to see the description or statement to see if there was any inconsistency which he had already indicated might render it admissible.  

13. 	The appellant asked the complainant about the second identification parade:
“Q.	Did you identify anyone positively as the person who broke into your house?
  A.	Yes …
  Q.	Did you tell the police to have one man put on a cap?
  A.	Yes …
  Q.	Without the cap you could not identify this person who went into your home?
  A.	The cap gave me a description of the person.
  Q.	I asked you, without the cap you couldn’t identify the person?
  A.	Yes.
  Q.	Why didn’t you identify the person without the cap?
  A.	I identify the person, then I asked the police to put the cap on to make sure it was the right person”.

Later, Chief Inspector Evans confirmed that the complainant did not identify the Appellant until after he had tried on the cap and then said “It looks like him”.

14. 	The judge held a voir dire on the issue of whether the oral and written confessions had been made voluntarily.  He concluded that the prosecution had failed to prove that they were voluntarily made and ruled that neither could be admitted in evidence.  

15. 	The appellant made a sworn statement in the witness box, was cross-examined and addressed the jury.

16. 	The jury convicted on both counts in the indictment.

17. 	The appellant drafted grounds of appeal on his own behalf:
(1)	The judge erred in preventing the appellant from asking the complainant questions about the first description;
(2)	The judge failed adequately or properly to direct the jury on the law of identification.

The Court of Appeal dismissed the appellant’s application without hearing argument or giving reasons.

The Appeal
18. 	Mr Michael Turner on behalf of the appellant advanced three principal grounds that the conviction amounted to a miscarriage of justice, in that the prosecution failed to disclose:
(1)	The record of the first description,
(2)	The details of the first identification parade, and,
(3)	The fingerprint examination of the scene of the crime.

The First Ground
19. 	Mr Turner submitted that the disclosure of relevant material is an integral part of an accused’s right to a fair trial.  It engages the principle of “equality of arms” inherent in Article 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, enshrined in the constitution of the Commonwealth of the Bahamas (Article 20, Chapter III, Protection of Fundamental Rights and Freedoms of the Individual) and a cardinal principle of the criminal common law applicable to the Bahamian jurisdiction.  Disclosure provides an accused with the only basis upon which he can actively and properly defend himself.  In support he cited a passage of Lord Widgery Chief Justice in R v. Turnbull [1977] 1 QB 224 at 228E (p. 228):
“The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made …  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?  If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given.  In all cases if the accused asks to be given particulars of such description, the prosecution should supply them …”

20. 	Mr Howard Stevens on behalf of the Crown submitted that in the circumstances of this case there was no obligation to disclose the material.  The practice in the Bahamas in 1994 in relation to the disclosure statements were derived from the principles in Berry v. The Queen [1992] 2 AC 364 at 375.  An accused was to be provided with copies of the depositions but not statements taken by the police unless the prosecution intended to call a witness at trial who did not give evidence at the preliminary inquiry.  Prosecuting counsel was however under a duty to inform the defence of any material discrepancy between the contents of a witness’s statement and the evidence given by that witness at trial. He may also be required to show the statement to the defence depending upon the circumstances. 

Additionally in 1994 it was the practice to disclose particulars of
(a)	any description given to the police, and recorded otherwise than in a statement, if there was any material discrepancy between it and the evidence given by the witness at trial;
(b)	any description given to the police (however recorded) if there was any material discrepancy between it and the appearance of the accused.

21. 	More recently, the practice has developed that statements containing descriptions given by identification witnesses are disclosed in advance of the trial.  Likewise, disclosure is given of other records of descriptions given by identifying witnesses – this being in line with the recommendation of the Court of Appeal (in England) in relation to crime reports and photographs, see R v. Fergus (1994) 98 Cr App R 313 at 324.  Thus the practice described in Berry has been attenuated to the extent that actual disclosure (and not merely particulars) is now given as a matter of course where identification is concerned. It follows that, according to the practice in 1994, it would have been incumbent on prosecuting counsel to inform the appellant (who defended himself) if there was any material discrepancy between the description Bullard gave the police and her evidence at the preliminary inquiry and/or trial and/or the appellant’s appearance. The appellant would not as a matter of course and without more have been provided with a copy of any statement or other record of the description.

22. 	Mr Stevens further submitted that no injustice is likely to have resulted from any failure to bring Mrs Bullard’s description to the appellant’s attention.  The appellant had copies of the depositions.  These included the deposition of DC Rolle who was asked by the appellant at the preliminary inquiry what description Bullard had given.  He gave a description which fitted the appellant.  This could have been challenged either at the preliminary hearing or at the trial by reference to Bullard’s own description which she claimed to have given the police during the preliminary inquiry (“tall and slim. Not too dark”) or the description given by her at trial (“young, slim, about six or seven feet tall, not too dark”).  The failure to disclose the statement or to divulge the initial material did not prevent him from doing so. Thus, it was submitted, any failure to inform the appellant of the description Bullard gave the police was substantially negated since Rolle’s deposition was served but not made use of by the appellant, despite the clearest invitation by the Judge to consider the depositions.

23. 	The Board considered the submissions on behalf of the respondent with considerable care but concluded that they were unable to accede to Mr Stevens’ argument.  The learned judge correctly stopped prosecuting counsel from asking questions, the answers to which would have been hearsay and might well have amounted to self-corroboration.  In doing so he recognised that a duty would arise if there was any reason to suspect that there was a material inconsistency between the initial description and subsequent descriptions given at the preliminary hearing and at trial.  He may not have realised that the complainant had in fact given a description before the magistrate which was inconsistent and irreconcilable with the obvious appearance of the appellant, and, if he had, he might have assisted the appellant by pointing this out to him.  

24. 	In the absence of the original statement or copy by the complainant in which she described her assailant it is impossible to say whether or not there was a material discrepancy which triggered the obligation to disclose in accordance with the practice which pertained in 1994.  However that is not the end of the matter.  In Berry v The Queen [1992] 2 AC 364 the Judicial Committee acknowledged that the appropriate means of achieving fairness to an accused with regard to disclosure to the defence of material in the prosecution’s possession was a matter to be determined by the particular legislature, executive and judiciary concerned; that although the Jamaican practice, particularly in relation to inconsistent previous statements, would normally be an acceptable means of achieving such fairness it did not extend to every situation in which fairness required the prosecution to make material available to the defence.  Lord Lowry said at page 376 at H:
“Bearing in mind the reference by Shelley J.A. in Regina v. Barrett (reference given) to the concept of counsel for the Crown as ‘minister of justice whose prime concern is its fair and impartial administration,’ their Lordships, while not feeling bound to accept in relation to Jamaica the comprehensive principles, almost amounting to criminal discovery, which the defendant has attempted to rely on, recognise that the ‘Purvis-Barrett’ principles do not cover every situation in which fairness may demand that the prosecution may make available material to the defence.”

It was held that failure to disclose certain statements to the defence constituted a material irregularity.

25. 	Their Lordships consider that in the particular circumstances of this case fairness required the prosecution to make the material available to the defence, regardless of whether there was a material discrepancy or not.  The appellant established that a statement had been taken which included a description and made a specific request for the statement.  He then sought to ask the complainant about the matter but was deterred from doing so by the judge.  Similarly when he sought later to adduce evidence from DC Rolle he volunteered a description which was based on his recollection some 3½ years after the incident, he was not present when the description was recorded and it is inherently unlikely that he would have been given a description which was inconsistent with the man in the dock.  The judge and prosecuting counsel must have been aware of the blindingly obvious inconsistency between the appearance of the appellant and the testimony of the complainant that her assailant was 6-7ft tall. Moreover the initial description must have been acted upon when the police were assembling the first identification parade upon which a suspect other than the appellant was about to stand. Moreover the appellant was unrepresented and would have been unable to approach prosecuting counsel on a “counsel-to-counsel” basis in the absence of the jury.  In these circumstances their Lordships consider it was incumbent upon the Crown, either to disclose the statement, or to hand it to the judge, or to ask for the jury to leave the Court so that the matter could be discussed in their absence.  It would also have been open to the judge to ask counsel to show him the statement and, depending upon what he read, to send the jury away so that he could explain and assist the appellant in their absence.  Their Lordships have reached the conclusion that the appellant did not have a fair crack of the whip to such an extent that there was a material irregularity in the trial process.

The second ground
26. 	In their Lordships’ view the failure to disclose the particulars of the first identification parade was unjustified.  Mr Stevens contends that as the complainant did not identify anyone on that parade and that the appellant was not present, the details of the description of the suspect who appeared on the first parade would have been no use to the appellant.  Their Lordships respectfully disagree with that proposition.  As already indicated their Lordships consider that there is a strong possibility that the first identification parade consisted of persons who did not fit the description of the appellant.  If that were the case, as should now be assumed in the appellant’s favour in light of the loss of the police file, clearly it would have opened a line of cross-examination which would have supported the contention that the first description given by the complainant did not fit the appellant. Moreover it would have supported a conclusion that DC Rolle had given unreliable evidence at the preliminary inquiry when he said that it did.  

The third ground
27. 	Their Lordships do not accept the appellant’s argument concerning the failure to disclose details of the fingerprint examination.  The fact that no prints were found which matched the appellant’s was not of itself exculpatory of the appellant. Their Lordships doubt that there was an obligation on the prosecution to disclose the identity of those whose prints were found on the premises.  In any event their Lordships are satisfied that the appellant did not suffer any prejudice by the absence of such disclosure.  The fact that there was no fingerprint to connect the appellant with the premises was essentially a jury point.  The transcript reveals that the appellant made the point clearly and succinctly when he addressed the jury.

The other grounds
28. 	Mr Turner advanced a number of other grounds but their Lordships do not consider it necessary to address them individually.  Suffice it to say that there are other matters which cause their Lordships concern over the integrity of the conviction. The first arises out of the summing up.  Once the judge had ruled that the confessions were inadmissible there was no corroboration of the complainant’s evidence and the case turned on the correctness and reliability of her identification evidence alone.  Consequently a most careful direction was called for.  The learned judge followed most of the Turnbull guidelines in an exemplary fashion during which he pointed out the weaknesses of the identification evidence.  However Lord Widgery, CJ specified that the direction should also point out any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance.  Their Lordships are satisfied that the jury should have received direction on this and, in any event, the judge should have referred specifically to the inconsistencies in the evidence regarding the assailant’s physical attributes with the appellant’s appearance.

29. 	Second, there is an inherent weakness in the identification evidence.  The complainant was in a darkened room, the sole source of light was the street lamp 100ft away.  At the identification parade two months later she could not identify the appellant until after he had put the cap on and then she merely stated “that looks like him”.  Their Lordships do not disagree with the trial judge’s decision not to stop the case going to the jury but alongside the other matters which have been dealt with they consider that the conviction is unsafe and accordingly unjust.  
30. 	For these reasons their Lordships humbly advised Her Majesty that the appeal should be allowed and the case remitted to the Court of Appeal with the direction that the Court should quash the conviction of the appellant and either enter a verdict of acquittal or order a new trial, whichever course it considers proper in the interests of justice.