The Judicial Committee of the Privy Council
On appeal from the Court of Appeal of the Commonwealth of The Bahamas
By Edward Fitzgerald QC
Capital murder trial – unrepresented defendant – right to representation - appeal – sentenced without Court inviting legal submissions
Bain v The Queen
 UKPC 10
This was an appeal to the Privy Council from the Court of Appeal of the Bahamas.
Mr Bain had been charged with murder. He conducted his capital trial on his own, without legal representation after the Judge permitted his counsel to withdraw. The Judge had told Mr Bain that he could only get his own set of papers if his counsel withdrew and he represented himself; so he dispensed with his counsel’s services with some encouragement from the Judge and counsel himself. After conducting his own trial and cross-examining the key witness pretty ineffectively, Mr Bain was convicted of murder and was sentenced to life imprisonment rather though the Judge could have imposed the death penalty. The Court of Appeal accepted that the trial judge had mismanaged the withdrawal of counsel but applied the proviso. The Court of Appeal then “reduced” the life sentence to 55 years imprisonment – without inviting counsel to address them on the length of sentence if the life sentence was set aside. Mr. Bain appealed to the Privy Council [“The Board”] against his conviction and sentence.
The Board emphasised the importance of representation by counsel in a murder trial, particularly one where capital punishment was at stake. The Board started from the principle that there was no absolute right to legal representation in all cases. But they drew on the cases of Robinson; Dunkley; and Mitchell to lay down a protocol to be followed where counsel sought to withdraw in such a case; and set out a series of factors that must be taken into account before permitting such withdrawal. Applying those principles, the Board found that the Judge had been too ready to permit counsel to withdraw; had failed to emphasise to the Appellant the magnitude of the step of dispensing with counsel; had failed to adjourn to see if alternative representation could be provided; and had not sufficiently considered the prejudice to the Appellant if he was left unrepresented. They found that the Appellant was seriously prejudiced by the lack of legal representation, and that this was not a case for applying the proviso since the evidence might have turned out differently had he been properly represented. They quashed the conviction and remitted the issue of whether there should be a retrial to the Bahamian Court of Appeal.
On the issue of sentence, the Privy Council went on to observe obiter that the Court of Appeal should have invited submissions on the length of any fixed term alternative sentence before substituting a sentence as long as 55 years for the life sentence. They further referred to the great range of fixed term sentences for murder in the Bahamas, which could be anywhere between 30 and 60 years.
Edward Fitzgerald QC represented Mr. Bain. Edward worked with the Death Penalty Project, in-house counsel Amanda Clift-Matthews and local counsel Martin Lundy II of Callenders & Co, Bahamas.
By Paul Taylor QC
Appeal against conviction – Theft – s.242, s.248(b) Criminal Code of Anguilla – Principles of R v Preddy - no case submission – Ineffective assistance of counsel at trial
Joseph Brice v the Queen
Eastern Caribbean Supreme Court
In the Court of Appeal Anguilla
JB was a director of a licensed trust management company – PITCO - which was responsible for the management of an international business corporation – Regency - in accordance to the terms of a Management Agreement. Regency had substantial monies to its credit, in a bank account held at Fortis Bank and on which JB had signing rights. JB managed the bank account based on written instructions sent to him by LBA, an accounting firm in South Africa on behalf of Regency. When JB provided trust management services to Regency, he was remunerated based on written instructions from LR.
Needing money for his personal use, JB sent an email to LR requesting that LR ask the principals of Regency to loan him the sum of US$950,000.00 for 8 weeks. By the time LR read the email, JB had already instructed Fortis Bank to debit Regency’s account and credit his account in the sum of US$950,000.00. Upon reading the email, LR contacted JB and indicated that there was no approval for the withdrawal of the monies and requested that JB immediately return the monies that he had withdrawn from Regency’s account. JB failed to do so and continued to use the monies for his own use. As a result, Regency and LR made reports to the police.
JB was charged and tried for money laundering and the theft of the sum of US$950,000.00 contrary to section 242 as provided by section 248(b) Criminal Code of Anguilla (the “Criminal Code”) and was convicted and sentenced. JB successfully appealed to the Court of Appeal which ordered him to be retried. On his retrial, the indictment charged him with several counts of breaches of the Proceeds of Criminal Conduct Act and theft. The judge directed the jury to acquit him of all charges under the Proceeds of Criminal Conduct Act and he was tried only on the count of theft. During his retrial, his counsel made a no case submission relying on R v Preddy – but presented in a sub-optimum way - and the submission was overruled. He was convicted and sentenced.
JB appealed against his conviction. He complained that:
(a) Counsel at the retrial did not competently represent him;
(b) The judge erred in failing to uphold his no case submission.
(c) The cumulative effect of both breaches undermines the safety of his conviction.
Held: allowing the appeal and quashing the conviction:
1. The no case submission
(a) Money in a bank account represents a credit balance. A credit balance represents a debt owed by a bank to an account holder. Property in the form of credit balance is the customer’s right, as creditor, to recover the debt from the bank. In circumstances that are analogous to the acts of the appeal, the charge of stealing the credit balance shall be proffered as distinct from a charge of theft of the actual sum of money in order for it to be sustainable. Failure to do so is fatal.
(b) In these circumstances, JB was charged and tried for theft of the sum of US$950,000.00 as distinct from theft of the credit balance in accordance with the Preddy and Hilton decisions. The evidence that the Crown led was incapable of establishing a prima facie case that JB had stolen the money. If at all, the charge, based on Preddy, ought to have been in relation to theft of the credit balance.
(c) Accordingly, the judge should have upheld the no case submission in light of this evidential difficulty since no evidence had been led to substantiate an essential element of the offence for which JB had been tried, namely the actus reus of theft of US$950,000.00, had not been proven.
2. Criticism of trial counsel
(a) The general rule is that not every deviation of counsel from standards of professional conduct during the conduct of the trial will result in a conviction being quashed on appeal. If the appellate court is of the view that, notwithstanding counsel’s default, the trial was not affected and the verdict would have inevitably been the same, the conviction may stand.
(b) However where counsel’s conduct was so egregious, the court may take the view that there has been a denial of due process, thereby undermining the safety of the conviction. [Boodram (Ann-Marie) v The State (2001) 59 WIR 493 applied; Bethel v The State (No. 2) (2000) 59 WIR 451 applied.]
(c) An appellate court must approach complaints about counsel’s incompetence, and its effect with a healthy skepticism. Where it has been demonstrated that counsel’s failures were of a fundamental nature, the court must proceed with great care before it concludes that the verdict would have inevitably been the same. Whilst not making a finding of incompetence against JB’s counsel, there is no doubt that the representation provided by his counsel could have been more helpful and enhanced. The complaints against counsel are serious and the applicable legal principles of Preddy should have been canvassed in more detail and with greater clarity in support of the no case submission. [Boodram (Ann-Marie) v The State (2001) 59 WIR 493 applied; Bethel v The State (No. 2) (2000) 59 WIR 451 applied.]
There are in effect two bases upon which an appellate court will quash a conviction based on a ground criticising the trial lawyers:
(a) Where the conduct of the trial lawyers amounted to errors or irregularities that had a detrimental impact on the trial. Such allegations require an identification of the errors and an analysis of the impact /effect of these on the trial. [Examples may include the inadequate preparation of the defence case, or a failure to properly advise a defendant on the need to give evidence.] [Day  EWCA Crim 1060; Thakrar  EWCA Crim 1096]
(b) Alternatively, “ … There may possibly be cases in which counsel's misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client.” Teeluck v The State  UKPC 14 [Para 39]. "In such a case, the question of the impact of counsel's conduct on the result of the case is no longer of any relevance, for whenever a person is convicted, without having enjoyed the benefit of due process, there is a miscarriage of justice regardless of his guilt or innocence. In such circumstances the conviction must be quashed.” Boodram  1 Cr App R 12 UKPC [para 35]
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