Capron v. The Queen (The Bahamas) [2006] UKPC 34 (29 June 2006)

Privy Council Appeal No 32 of 2005

Mark Anthony Capron							Appellants
v.
The Queen	Respondents

FROM

THE COURT OF APPEAL OF
THE BAHAMAS
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JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 29th June 2006

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Hoffmann
	Lord Hutton
	Lord Rodger of Earlsferry
	Lord Carswell
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Delivered by Lord Rodger of Earlsferry]		

1.	On 17 October 2002 the appellant, Mark Anthony Capron, was convicted in the Supreme Court of murdering Andrew Simms Ferguson.  He was sentenced to death.  On 25 February 2004 the Court of Appeal (Churaman, Ganpatsingh and Osadebay JJA) dismissed his appeal for reasons which they gave in writing on 28 April 2004.  On 21 October 2004 the Board recommended that special leave to appeal should be granted.

2.	The incident occurred in broad daylight on the morning of 6 March 2001 in Johnson Alley, otherwise known as the Corpect, in Nassau.  The alley runs off Wulff Road and the incident took place towards the other end of the alley.  The exact circumstances leading to the murder are somewhat unclear, but there appears to have been an argument between Jermaine Hepburn (also known as “Bingy”) and Irvin Brown.  According to the Crown witness, Gregory Ferguson, Bingy had a knife.  A scuffle broke out between Bingy and Brown.  The deceased was present.  Gregory Ferguson said that the appellant came across the street with a gun, took hold of the deceased by the neck and shot him.  He then ran after Irvin and shot at him.  The appellant came back and fired another shot at the deceased who was lying on the ground.  By reference to distances in the court, it appears that the witness indicated that he was about 40 feet away from where the deceased was shot.  Ferguson said that he had grown up with the appellant and had known him for 8 to 9 years or more.  During that period he would see the appellant sometimes twice a day, almost every day.  The witness identified the appellant in the dock.

3.	The other eye witness was Irvin Brown who also gave evidence for the Crown.  He spoke to meeting up with Bingy and to having got into a fight with him.  Brown said that the appellant came running down the road, pulled out a gun and shot the deceased twice at point blank range.  When Brown tried to help the deceased, the appellant began firing at him and he ran for his life round the back of a neighbouring house.  According to Brown, when the deceased tried to get up, the appellant shot him again:  there were only about 12 or 13 seconds between the two shots.  Brown said that he had known the appellant, whom he identified in the dock, for about 16 years.  For the first 5 or 6 years he would have seen him just about every day, on and off.  Latterly he would see him about 3 times a month when he went to see the mother of his daughter who lived in the vicinity of Johnson Alley.  Brown too identified the appellant in the dock.

4.	The cross-examination for the defence was to the effect that the witness and some other men had attacked the deceased in connexion with a drugs matter and that he had given the appellant’s name to the police as the person who had killed the deceased in order to divert attention from himself and the other members of his group.  The witness repudiated the suggestion and said that he had seen the deceased getting shot in the face “clear as day”.  After that the appellant had turned the gun on the witness when he was close to him and facing him.  The appellant fired two or three times and the witness took off running, with the appellant pursuing and saying he would kill him.

5.	Before turning to the defence evidence, it is convenient to deal with a ground of appeal, arising out of the evidence of Ferguson and Brown, which Mr Wynne Jones advanced briefly on behalf of the appellant.  He submitted that in the trial the judge had been wrong to repel counsel’s objection to these witnesses being allowed to make a dock identification of the appellant when they had not previously identified him at an identification parade.  He referred to the observation of Lord Hoffmann in Goldson and McGlashan v The Queen (unreported) 23 March 2000, PC:

“Their Lordships consider that the principle stated by Hobhouse LJ in R v Popat [1998] 2 Cr App R 208, 215, that in cases of disputed identification ‘there ought to be an identification parade where it would serve a useful purpose’, is one which ought to be followed.  It follows that, at any rate in a capital case such as this, it would have been good practice for the police to have held an identification parade unless it was clear that there was no point in doing so.  This would have been the case if it was accepted, or incapable of serious dispute, that the accused were known to the identification witness.”

6.	In the present case the appellant did not dispute that the two witnesses knew him and had done so for many years.  His position was simply that they were lying when they gave evidence identifying him as the person who had carried out the shooting.  Defence counsel conducted the trial on that basis.  This is accordingly the kind of case, envisaged in Goldson and McGlashan, where holding an identification parade for these witnesses would have served no useful purpose and where their dock identifications did not carry the risk that they might have been influenced to identify the accused simply because he was sitting in the dock.  Similarly, there was no need for the judge to give the jury the kind of direction about the dangers of a dock identification envisaged in para 8 of the judgment of the Board in Pop v The Queen (unreported) 22 May 2003, PC.  The judge was therefore correct to repel the objections and this ground of appeal must be rejected.

7.	At the trial the appellant did not give evidence but made a statement from the dock:

“On that morning, right, I just was going to the doctor, and I stopped to hail my uncle.  We were talking for a little while on a porch.  We heard a few shots and I went – my uncle tell me he was getting ready to go up the road by Percy Munnings, so he went walking to the corner and I went on the bus.  Before I went on the bus, I saw when the police car came through the corner, but I didn’t really go in the back to see what happened.  Like I say, I didn’t do nothing to no one.  I didn’t hurt no one like that.  I never own a gun in my life, so I don’t know why they are accusing me of a crime I have no knowledge of.  I don’t know why they are accusing me of something I didn’t do.”

In effect, he said that, at the time when the murder took place, he was talking to his uncle on the porch of his uncle’s house on Wulff Street.

8.	Jermaine Hepburn, Bingy, gave evidence for the appellant.  He said that he had been standing by a car which was parked on one side of Johnson Alley when Brown walked behind him and tried to choke him.  He saw the deceased come walking.  “But this fella who they get right there [referring to the appellant in the dock], he was on the corner talking to his uncle when Irvin – when he hold up on me.  I heard all kind of gunshot firing.  When I break off running and I come back to the scene, all I see is the fella who got shot on the ground.”  It was put to him “You never see who fired off the shot” and he replied “Yes.”  A little later he said “When I began running, I run past Mark still sitting down because when I saw Mark he just stand up and looked.  He was always on that porch with his uncle Larry.”  In cross-examination the following exchange took place:

“Q  So you only saw him once?
 A  Only once.
 Q  So when you ran pass the porch you didn’t see him?
 A  No.  After I got grazed and I ran back to the corner, that was
 when he was still sitting on the porch.
 Q  So during the morning, how many times did you see him?
 A  Twice.  The first time he gone to his uncle and when I got
 grazed, that is when I got grazed….”

9.	The witness said that the house where the appellant was sitting on the porch was up to the front on the Wulff Road side.  He indicated that the corner, by which he appears to have meant Johnson alley running down from Wulff Road, “was a long corner”.  The judge asked him “When you heard the shots, were you able to see Mark at that time?” to which he replied “No.”  The prosecutor put it to him that he didn’t know who fired the shots and he replied “No.”  She then put it to him that he could not say whether it was Mark who fired the shots, to which he replied “No, ma’am.”  A little later came the following exchange:

“Q  So you can’t say to this Court who in fact shot the deceased?
 A  All I see was gunshot fire, and when I run, I run past the
 same porch that Mark was on.
 Q  You were involved with the fight with Irvin?
 A  Yeah, he was holding me like this and I was just trying to
 get to him.
 Q  And at that present time you don’t know where Mark was?
 A  No.”

10.	The first matter to which the Board must turn arises out of the judge’s handling of the identification evidence in her summing-up.  In particular, she did not give the warning envisaged in R v Turnbull [1977] QB 224.  Immediately after she had completed her summing-up, counsel for the prosecution mentioned that she had not given a Turnbull warning in the form appropriate for a witness who claims to have recognised the perpetrator of the crime.  The judge said:

“I am not going to give the Turnbull warning.  It is not a Turnbull case.  This is whether or not they are lying.  It’s not mistaken identity.  There was no allegation.  I considered that and I decided not to do it.”

Among the amended grounds of appeal in the Court of Appeal the fourth was “The learned trial judge erred in law when she failed to adequately direct the jury on the defence of alibi” and the fifth was “The learned trial judge erred in law where she failed to give the Turnbull warning to the jury in cases of identification by recognition.”  In their written reasons, however, the Court of Appeal recorded that, while counsel had raised a number of grounds in his notice of appeal, as the arguments progressed, the real issue came down to only one serious ground:  that, the defence of alibi having been raised, that is to say, the appellant not admitting that he was where the eye witnesses said he was, a Turnbull direction was essential.  From what the Court of Appeal go on to say, it appears that the argument had been based on R v Lesley [1996] 1 Cr App R 39 and had been to the effect that the judge should have directed the jury that, even if they rejected the appellant’s alibi, they should bear in mind that false alibis may be put forward for many reasons.  As Lord Widgery LCJ said in Turnbull v R [1977] QB 224, 230:

“It is only when the jury is satisfied that the whole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, can fabrication provide any support for identification evidence.  The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness said he was.”

The Court of Appeal rejected that criticism:

“This is a case of identification by recognition in broad day light by two witnesses who had known the appellant for years, had seen him for the considerable time of some one-half to one hour and later in gun-play action for some fifteen or so minutes;  and they had not been obstructed in their vision or visibility from any source whatever.  This was not a fleeting glance case, and there was no circumstance or circumstances, which could suggest the necessity for a Turnbull direction.”

11.	Before the Board counsel did not lay any particular emphasis on the fact that the case was one involving an alibi.  His argument was more general:  he submitted that, even though the defence had attacked the two principal Crown witnesses on the basis that they were lying, rather than that they were mistaken when they identified the appellant as the killer, nevertheless the judge should have given a Turnbull direction.

12.	In R v Turnbull [1977] QB 224, Lord Widgery LCJ gave the now familiar advice on how the danger of miscarriages of justice might be much reduced if trial judges were to sum up in the way that he went on to indicate.  He then proceeded to explain what should be said to the jury and added, at p 228H:

“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

Having given various examples of how situations might be handled in practice, Lord Widgery added, at p 231A-C:

“In setting out these guidelines for trial judges, which involve only changes of practice, not law, we have tried to follow the recommendations set out in the Report which Lord Devlin’s Committee made to the Secretary of State for the Home Department in April 1976.  We have not followed that report in using the phrase ‘exceptional circumstances’ to describe situations in which the risk of mistaken identification is reduced.  In our judgment the use of such a phrase is likely to result in the build up of case law as to what circumstances can properly be described as exceptional and what cannot.  Case law of this kind is likely to be a fetter on the administration of justice when so much depends upon the quality of the evidence in each case.  Quality is what matters in the end.  In many cases the exceptional circumstances to which the report refers will provide evidence of good quality, but they may not:  the converse is also true.”

13.	Their Lordships were referred to a number of later cases where the Board and other courts had considered the effect of a failure by a judge to give a Turnbull direction.  Undoubtedly, the high point for the appellant is the judgment of the Board given by Lord Lowry in Beckford v R (1993) 97 Cr App R 409.  The appellants and a co-accused had been charged with murder.  At their trial the principal witness for the Crown said that he had known one of the appellants for about a year, another since birth and the third from when he was a little boy.  He spoke to having heard two gunshot explosions and having then run to a position where he had seen the three appellants, all armed with shotguns, with one of them holding the deceased.  He had been about 8 chains away when he saw this, but subsequently he saw the men from a distance of about 2 chains when they ran on to a track.  The judge did not give a Turnbull warning about identification evidence, but did alert the jury to the fact that the issue of identification was critical.  The Court of Appeal of Jamaica dismissed the appeal on the basis that they were not prepared to establish an absolute rule on the need for a warning about identification evidence.  The Board allowed the appeal.

14.	Having canvassed the Jamaican case law, Lord Lowry said this, at p 415:

“The need to give the general warning even in recognition cases where the main challenge is to the truthfulness of the witness should be obvious.  The first question for the jury is whether the witness is honest.  If the answer to that question is yes, the next question is the same as that which must be asked concerning every honest witness who purports to make an identification, namely, is he right or could he be mistaken?
Of course no rule is absolutely universal.  If, for example, the witness’s identification evidence is that the accused was his workmate whom he has known for 20 years and that he was conversing with him for half an hour face to face in the same room and the witness is sane and sober, then, if credibility is the issue, it will be the only issue.  But cases like that will constitute a very rare exception to a strong general rule.”

Referring to further submissions about the need for the judge to point out any specific witnesses in the identification, Lord Lowry went on:

“Their Lordships, however, having regard to their conclusion upon the judge’s failure to give a general warning, and also because they wish to emphasise that such a failure will nearly always by itself be enough to invalidate a conviction which is substantially based on identification evidence, deem it unnecessary to devote to counsel’s second point the care which it would otherwise deserve.”

15.	In Shand v R [1996] 2 Cr App R 204, there were two independent witnesses who knew the appellant and identified him as the murderer.  They had seen him at different stages of the incident and from close quarters.  The defence case was that the witnesses were deliberately lying.  Having referred to what Lord Lowry said in Beckford, Lord Slynn said, at p 209D-E:

“The importance in identification cases of giving the Turnbull warning has been frequently stated and it clearly now applies to recognition as well as to pure identification cases.  It is, however, accepted that no precise form of words need be used as long as the essential elements of the warning are pointed out to the jury.  The cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence.  In the latter type of case the judge should normally, and even in the exceptional case would be wise to, tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of mistake referred to in Turnbull.”

The Board went on to hold that the evidence of identification in that case was “exceptionally good”.  As grounds for that conclusion, Lord Slynn cited the fact that the appellant accepted that he had known both the witnesses for a long time, that the identification took place in daylight and at close quarters, that one of the witnesses had immediately mentioned the appellant’s name and that one of the witnesses left quickly - apparently because of past disputes with the appellant.  On this basis the Board was satisfied that there had been no miscarriage of justice since the jury would inevitably have returned the same verdict if they had received the appropriate warning.

16.	The Board notes that in both Beckford and Shand there is a suggestion that only in “wholly exceptional” or “very rare” cases could a court dispense with giving a Turnbull warning even where the main issue is the credibility of the witness or witnesses.  In their Lordships’ view, experience tends to show the wisdom of Lord Widgery’s apprehension in Turnbull that using the phrase ‘exceptional circumstances’ to describe situations in which the risk of mistaken identification is reduced would be liable to result in the build-up of case law as to which circumstances can properly be described as exceptional and which cannot.  Such case law is liable to divert attention from what really matters, which is the nature of the identification evidence in each case.  Perusal of the cases where the Board either has, or has not, allowed an appeal where the trial judge has omitted to give a Turnbull direction in a recognition case indicates that, not unexpectedly, the result depends on such matters as whether the evidence is corroborated, whether the conditions for observation were good, whether it was a fleeting glance etc.  This suggests that, even in a recognition case, the trial judge should always give an appropriate Turnbull direction unless, despite any defence challenges, the nature of the eye witness evidence is such that the direction would add nothing of substance to the judge’s other directions to the jury on how they should approach that evidence.

17.	In the present case the judge considered the matter and quite deliberately chose not to give a Turnbull direction because of the nature of the case.  The defence advanced by counsel was that the two Crown witnesses were lying.  And, to support that position, counsel could rely on certain inconsistencies in the witnesses’ evidence and, in the case of Irvin Brown, his involvement in a fight with the deceased immediately before his death.  The jury required, of course, to take these points into account, as the judge directed.  If they took the view that these inconsistencies showed that the witnesses were dishonest or generally unreliable, then they would, of course, have had to acquit the appellant.  But, assuming that they did not come to that conclusion, the jury had still to go on to consider, more particularly, whether the witnesses’ evidence as to the identity of the person who shot the deceased was reliable or whether they might have made a mistake.

18.	The relevant directions to the jury on this issue are to be found in more than one place in the judge’s summing up.

19.	Early on, she pointed out that when they judged the evidence of any witness and evaluated the witness’s evidence, the jury should bear in mind the opportunity that the witness had to observe the event in question.  Although, this is a general direction and was not given specifically in relation to the eyewitnesses, that is no reason to discount it when considering how the jury had been told they should approach their evidence.  If the jury followed the direction, they would have been entitled to reach the view that, if the witnesses were telling the truth, they had both had a reasonable opportunity to see what happened when the deceased was killed.

20.	Further on in her summing-up, when the judge turned specifically to deal with the evidence of the eye witnesses, she reminded the jury that the prosecution case stood or fell by their evidence.  She continued:

“The defence does not allege that they are mistaken about the accused’s identity, but rather that they are lying.  The defence alleges that someone else did the shooting and that the witnesses came here and have concocted the story to pin it on Mark to protect someone else.  Notwithstanding that the defence is not suggesting they are mistaken about his identity, but that they are lying, you have to be sure, firstly, that they are telling you the truth and, secondly, that they are not mistaken about the identity of the person they say shot the deceased.”

In reproducing the passage, their Lordships have corrected the punctuation in the transcript.

21.	In effect, the judge was pointing out to the jury that, even though the defence was saying that the witnesses were lying and was not saying that they were mistaken about the accused being the person who shot the deceased, none the less the jury had to be sure that the witnesses were telling the truth and that they were not mistaken about the identity of the person who shot the deceased.  So there was a clear indication to the jury that, even if they rejected the defence position and came to the view that the witnesses were telling the truth, they still had to be sure that the witnesses were not mistaken about the identity of the killer.  The judge thus specifically directed the jury’s attention to the possibility that these critical Crown witnesses had been mistaken.  In the circumstances of this case, their Lordships are not persuaded that by going further and reminding the jury that people can indeed make mistakes in recognising relatives or friends the judge would have added significantly to the impact of the direction or have altered the way that the jury would have approached the evidence.

22.	The overall position was that the jury had before them the evidence of two eye witnesses who had known the appellant for many years before the incident and who would therefore have been able to recognise him in suitable conditions.  The incident occurred in suitable conditions - in the morning, in full daylight.  Ferguson’s evidence was that he saw the critical events from a distance which the judge estimated at about 40 feet;  Brown’s evidence was that he was very close indeed to the appellant when he fired at the deceased and that he was facing the appellant when the appellant then pointed the gun at Brown himself.  In these circumstances the Board is satisfied that the nature of the eyewitnesses’ evidence was such that giving a full Turnbull direction would not have added anything of substance to the directions which the judge actually gave the jury.  The absence of a Turnbull direction does not make the appellant’s conviction unsafe.  This ground of appeal must therefore be rejected.

23.	Although it appears that before the Court of Appeal counsel appearing for the appellant did not develop the ground of appeal to the effect that the judge had not adequately directed the jury on the defence of alibi, this was very much a live issue before the Board.  Counsel emphasised that this was a case where the appellant’s position throughout the trial had been that, at the time of the killing, he had been talking to his uncle on the porch of his uncle’s house.  He had said as much in his statement from the dock.  And, of course, he had led a witness, Jermaine Hepburn, who had given evidence to the effect that he had seen the appellant talking to his uncle before the incident began and, when he ran past the uncle’s house after the incident, the appellant was still sitting talking to his uncle.  If the jury had accepted Hepburn’s evidence, it would have been open to them to infer that he had indeed been with his uncle all through the incident.  In that event, the jury would have had to reject the evidence of the two principal Crown witnesses.  So the evidence of Hepburn was of critical importance and it was vital that, in summing it up to the jury, the judge presented it fairly.

24.	What the judge said in her summing-up was this (again with some emendations to the punctuation of the transcript):

“[The appellant] called Jermaine Hepburn, Bingy, who, it is a question for you, but you may think that he did not help him at all.  Because he did not really see him at the time of the shooting.  He said he saw him on his uncle’s porch and he came through the corner and he saw him again after he heard the shots and when he ran past the uncle’s porch.  He did not see him during the shooting, did not see the deceased during the shooting and he admitted that he could not say who shot the deceased.  And so, you may think - and it’s a question for you - that he really did not take the accused’s case anywhere further because at the relevant time he couldn’t say where he was.”

At the end of her summing-up the following exchanges took place between counsel for the defence and the judge in the presence of the jury:

“Mr McPhee:  On the question of alibi and Bingie not helping the accused’s case.  Bingie said he saw the accused on the porch.
The Court:  When he came through the corner.
Mr McPhee:  And he was on the porch when he left.  So, as far as alibi is concerned, that would strengthen that he was some place else.  He was on the porch when he went in and he was on the porch…
The Court:  You see, he did not say how long it was between the two and further, he admitted that he cannot say.  That’s his evidence.  He admitted that he cannot say where the accused was during the time of the shooting because he did not see any of them, Mr McPhee.  So, how can he say he was on the porch?
Mr McPhee:  He said he was on the porch when he came in and he was on the porch when he left.
The Court:  And I indicated that to the jury.
Mr McPhee:  That’s why I am pointing out for the record.
The Court:  Let me just make sure that you understand.  What I am saying to you is that Hepburn, Bingy, could not say at the time of the shooting where the accused was.  He admitted that he saw him as he came through the corner on the porch.  We don’t know how long he was through the corner before the shooting.  We do not know how long he tarried or if he tarried after the shooting.  That was not asked.  He said he was on the porch when he ran, after the shooting.  All I am saying to you is that he cannot say conclusively where the accused was at the time of the shooting and he admitted that.  I believe that’s the evidence.
Mr McPhee:  Yes, that’s the evidence.  I just point out that the inference would have to be made by them.
The Court:  And may I also say, as I indicated earlier, any views that I express on the evidence are my views and you are not bound to accept my views of the evidence.  I pointed out what Bingie said.  I have also pointed out to you, which is a fact, that he could not say, and it is his evidence and he admitted he could not say, at the time of the shooting where the accused was or where the deceased was.  So, he can’t say for sure that the accused was on the porch at the time of the shooting.  That’s all that I am saying but it is a question for you.”

25.	The general effect of the judge’s direction on Hepburn’s evidence emerges from the opening words when she told the jury that they might think that it “did not help [the appellant] at all because he did not really see him at the time of the shooting.”  In other words, she indicated that, because Hepburn had only seen the appellant on the porch before and after the incident, rather than at the very time when the deceased was shot, his evidence did not take the appellant’s case any further.  She reinforced this message at the end of the direction.  In their Lordships’ view this was much too extreme a comment and the judge should not have made it in those terms.

26.	Doubtless, there were weaknesses in Hepburn’s evidence as the basis for an alibi.  For instance, neither his evidence, nor the evidence generally, made clear exactly where the appellant’s uncle’s house was and, more particularly, how far away it was from the scene of the murder.  If it was close, then there might well be something to be said for the view that, even if the appellant was on the porch before and after the incident, he could have shot the deceased in the intervening period.  The judge herself had tried to clarify the position in her questions to Mr Brown, but the only indication was to the effect that the uncle’s house was at one end of the long corner in which the shooting took place.  If anything, this might suggest that the porch was some distance from the scene of the crime.  Similarly, there was nothing in Hepburn’s evidence to show the length of the gap between the time when he saw the appellant before the incident and the time when he saw him after the incident.  Again, this was, potentially, a relevant factor for a jury considering whether to draw an inference that the appellant could not have been the person who committed the murder.  In summing up, the judge would have been entitled to draw attention to these points - but in a restrained fashion which took account of the fact that the onus lay on the Crown to negative the possible alibi that was raised by the evidence.

27.	More particularly, while it is true that Hepburn could not say who fired the shots and so could not say whether it was the appellant who fired them, the absence of that particular evidence did not detract in any way from the actual evidence which he was able to give, about the appellant being on his uncle’s porch both before and after the incident.  It was this evidence – not the non-existent evidence - which the defence was inviting the jury to accept and to use as a basis for inferring that the appellant would also have been on the porch, rather than at the scene, when the deceased was shot.  The defence was fully entitled to make that point.  Whether the jury chose to accept the evidence or to draw the inference was, of course, entirely a matter for them, but it was essential that they should have been left to consider the point for themselves, free from the judge’s repeatedly expressed and extremely negative assessment of the evidence.

28.	The position was only made worse by the exchanges between the judge and defence counsel at the end of her summing-up where the judge explained that what she was saying was that the witness could not say “conclusively” where the appellant was at the time of the shooting.  The jury were in a position to overhear this exchange and, in any event, the judge then went on to make the point to them that the witness could not say “for sure” that the accused was on the porch at the time of the shooting.  Of course, she qualified that direction by telling the jury that they were not bound by her views and that the question was a matter for them.  But this did not draw the sting of her negative comments.  More particularly, the fact that the witness could not say “conclusively” or “for sure” where the appellant was, or that he was on the porch, at the time of the shooting was no basis whatever for saying that his evidence did not help the appellant at all.  On the contrary, Hepburn’s evidence provided a possible, though admittedly not conclusive, basis for thinking that the appellant might not have been at the scene of the shooting.  Even if the jury did not go so far as actually to draw the inference that the appellant could not have shot the deceased, the evidence might have raised a doubt in their minds about the eyewitnesses’ identification.  The jury should therefore have been directed that, if Hepburn’s evidence raised a reasonable doubt about the appellant’s guilt, they must acquit.  Instead, they were given directions which indicated all too clearly that, in the judge’s view, Hepburn’s evidence did not really help the appellant’s defence at all.

29.	The Board concludes that, taken together, the original direction to the jury, the subsequent exchange with counsel and the additional direction were unfairly prejudicial to the appellant because they undermined the alibi which was the central issue raised in his defence.  Given that the Crown case depended on the jury accepting the evidence of the two eyewitnesses and that Hepburn’s evidence could be seen as casting doubt on their evidence, it is impossible to say that, if the jury had been given appropriate directions on his evidence, they would inevitably have returned the same verdict.  The verdict must accordingly be regarded as unsafe.

30.	Their Lordships will accordingly humbly advise Her Majesty that the appellant’s appeal against conviction should be allowed and the case remitted to the Court of Appeal to consider whether to order a new trial.

31.	In these circumstances their Lordships do not need to deal with the appeal against the mandatory death sentence, which they would in any event have been bound to allow, following the decision in Bowe v The Queen [2006] 1 WLR 1623.