Maxo Tido (Appellant) v The Queen (Respondent)

From the Court of Appeal of the Commonwealth of the Bahamas

The Supreme Court of the Bahamas after a trial convicted the appellant of the murder of Donnell Conover. Following a sentencing hearing, the judge sentenced the appellant to death. The Court of Appeal of the Bahamas dismissed the appellant’s appeal against his conviction. His appeal against sentence was also dismissed. The appellant sought special leave to appeal to the Judicial Committee of the Privy Council which was granted.

The appellant made two principal submissions. The first was that the judge should not have permitted a dock identification. Alternatively, it was contended that the directions given by the judge in relation to the identification were deficient. The second main argument was that the murder of the deceased was not one that fell within the wholly exceptional category of killing that warranted the imposition of the death penalty. Again this argument was supplemented by a subsidiary, alternative submission. It was to the effect that before the sentence of death could be imposed, the judge ought to have ordered that a psychiatric report on the appellant be obtained, principally for the purpose of determining whether there was any reasonable prospect of reform. Finally, it was argued that the Court of Appeal in the Bahamas had adopted a different test for the imposition of the death penalty from that prescribed by various decisions of the Judicial Committee of the Privy Council.

On the Dock Identification the Board observed that a dock identification is not inadmissible evidence per se and that the admission of such evidence is not to be regarded as permissible in only the most exceptional circumstances. A trial judge will always need to consider, however, whether the admission of such testimony, particularly where it is the first occasion on which the accused is purportedly identified, should be permitted on the basis that its admission might imperil the fair trial of the accused. Where it is decided that the evidence may be admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on that evidence and in particular to warn them of the disadvantages to the accused of having been denied the opportunity of participating in an identification parade, if indeed he has been deprived of that opportunity. In such circumstances the judge should draw directly to the attention of the jury that the possibility of an inconclusive result to an identification parade, if it had materialised, could have been deployed on the accused’s behalf to cast doubt on the accuracy of any subsequent identification. The jury should also be reminded of the obvious danger that a defendant occupying the dock might automatically be assumed by even a well intentioned eye-witness to be the person who had committed the crime with which he or she was charged.

On the merits of the case, the Board did not consider that it was a case where the judge was bound to have concluded that the admission of the dock identification of the appellant would result in an unfair trial to the accused. The Board even observed that there were circumstances which might well have favoured the admission of the dock identification evidence. The Board held that the failure of the trial judge to address the reasons that an identification parade was not held meant that there was not a proper exercise of her discretion. If those issues had been addressed, it was possible that the dock identification could have been properly allowed. But since they were not, its admission in evidence could not be upheld.

The Board observed that even if it had been possible to admit the dock identification, however, it was plainly a case where, once the evidence was admitted, it was of the utmost importance that proper directions about the dangers of dock identification evidence be given to the jury.

Though the judge warned the jury that they should be careful in deciding whether they could rely on Ms Edgecombe identification evidence and that they could act on it only if they were sure that she not only told the truth but was also correct in her identification. She reminded them that the examination of this issue should take place against the background of the warnings she had already given. But none of these directions focused directly on the specific problems associated with dock identification evidence where no prior identification parade had been held. The judge did not warn the jury about the absence of opportunity for the appellant to take advantage of a possible inconclusive outcome to an identification parade nor did she tell them of the danger of Ms Edgecombe concluding that the appellant was the man that she had seen making the telephone call because he was the defendant in the trial. The Board therefore concluded that the directions of the judge on the issue of the dock identification were inadequate.

Section 13 (1) of the Court of Appeal Act (Ch. 52) provide:

“13.(1) After the coming into operation of this section, the court on any such appeal against conviction shall allow the appeal if the court thinks that the verdict should be set aside on the grounds that-

(c) under all the circumstances of the case it is unsafe and unsatisfactory

… Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the court considers that no miscarriage of justice has actually occurred.”

The Board held that the proviso should be applied in the present case as apart from the dock identification the evidence against the appellant was overwhelming. They created a formidable case against the appellant. A finding of guilt was inevitable, regardless of whether the dock identification took place. No miscarriage of justice took place as a result of the appellant being convicted. The Board held that the appellant’s appeal against conviction should be dismissed.

The appeal against sentence:

The Board reiterated that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, “the worst of the worst” or “the rarest of the rare”. In considering whether a particular case fall into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled.

The Court of Appeal had concluded that it should not interfere with the exercise of the trial judge’s discretion and the appeal against sentence was dismissed. But the Board held that though it was an appalling murder but it was not one which warranted the punishment of death. The Board thus allowed the appeal against sentence and that the matter was remitted to the Court of Appeal of the Bahamas for the imposition of the appropriate sentence in light of the Board’s judgment.