Maxo Tido v The Queen (Bahamas)

A dock identification is not inadmissible per se and need not be confined to the most exceptional cases. The trial judge must consider whether admission could imperil a fair trial, particularly where it is the first identification and no identification parade was held. If admitted, the jury must receive specific warnings about the disadvantages of the absent parade, the possible benefit of an inconclusive parade, and the risk of identifying the defendant because he is in the dock. A conviction may nevertheless be upheld under the proviso where a properly directed jury would inevitably have convicted. The death penalty is reserved for wholly exceptional murders and requires both extreme offence circumstances and no reasonable prospect of reform.

The appellant was convicted of murder and sentenced to death in the Supreme Court of the Bahamas. The Court of Appeal dismissed appeals against conviction and sentence. Before the Privy Council, he challenged the admission and directions concerning a witness’s dock identification, the application of the conviction proviso, and the discretionary imposition of the death penalty. He also argued that a psychiatric report was required before sentence. The central issues were whether the identification evidence had been properly admitted and directed upon, whether any error caused a miscarriage of justice, and whether the murder fell within the wholly exceptional category warranting death.

1. Conviction. The Board reaffirmed the approach in Aurelio Pop v The Queen [2003] UKPC 40 and Pipersburgh and Robateau v The Queen [2008] UKPC 11. A dock identification is not inadmissible per se and is not permissible only in the most exceptional circumstances. Admission remains a case-specific discretion. The judge must consider whether it might imperil a fair trial, including why no identification parade was held. The absence of a good reason militates against admission, while the defendant’s refusal to participate may support it (paras [21]-[23]).
2. Where dock identification is admitted, the jury must receive careful directions addressing its specific dangers. The directions should explain the defendant’s lost opportunity to rely on an inconclusive parade and the risk that a witness may assume that the person in the dock committed the offence. General eye-witness identification warnings were insufficient (paras [21], [24]-[27]).
3. The trial judge had failed to consider why no parade was held and had not given adequate directions. The admission could not therefore be upheld. Nevertheless, the proviso in section 13(1) of the Court of Appeal Act applied. On the whole evidence, a properly directed jury would inevitably have convicted, so no miscarriage of justice had occurred (paras [28]-[32]).
4. Sentence. Applying Trimmingham v The Queen [2009] UKPC 25, and the approach approved in Pipersburgh v The Queen [2008] UKPC 11, the Board held that death must be reserved for the wholly exceptional category of murders. The offence must be among the most extreme and exceptional murders, assessed by comparison with other murder cases, and there must be no reasonable prospect of reform or other means of achieving the purposes of punishment. Mitigating circumstances could operate only in the offender’s favour. This murder was appalling but was not shown to have been planned or accompanied by unusual violence beyond that required to kill, and there was no clear indication of rape. The sentence appeal was allowed and remitted for the appropriate sentence.
5. It was unnecessary to decide whether a psychiatric report was mandatory in every case. However, where death is contemplated, professional advice would be required to assess whether the possibility of reform does not exist (para [38]).

• Privy Council: The conviction appeal was dismissed under the proviso; the sentence appeal was allowed and remitted to the Supreme Court of the Bahamas.
• Court of Appeal of the Bahamas: The appeals against conviction and sentence were dismissed on 14 October 2008.
• Supreme Court of the Bahamas: The appellant was convicted of murder and sentenced to death on 20 March and 20 April 2006.