Nigel Brown v The State (Trinidad and Tobago)

The admission of weak bloodstain evidence is not necessarily erroneous where the evidence may assist the defence. The jury must, however, be directed that unanalysable blood cannot link an accused to the crime and may be considered only in the context of the defence case.

Omission of a good-character direction is not automatically fatal. The appellate court must assess the nature of the issues, the strength of the other evidence and the significance of the direction. The statutory proviso may be applied where a properly directed jury would inevitably have reached the same verdict. Fresh medical evidence on fitness to plead may be admitted where the interests of justice require a safety review.

The appellant was convicted of murdering Lloyd Bailey in Trinidad and Tobago and sentenced to death. The Court of Appeal dismissed his appeal, holding that evidence concerning bloodstains on his clothing had wrongly been admitted, but applying the statutory proviso because the conviction remained safe. It also held that a modified good-character direction should have been given, but that its omission was not fatal.

Before the Privy Council, the appellant challenged the treatment of the blood evidence, the absence of a good-character direction, the verification procedure and dock identification, the admission of spontaneous utterances, the refusal to discharge the jury, and the refusal to receive fresh medical evidence concerning fitness to plead. The central questions were whether the trial errors affected fairness or safety and whether the fresh evidence required the conviction to be reviewed.

Disposition. The Board admitted the fresh medical evidence and remitted the case to the Court of Appeal to determine the safety of the conviction in light of that evidence and any rebutting evidence admitted. The conviction was therefore not finally upheld at this stage.

1. Blood evidence. The evidence was not wrongly admitted. It had not been challenged at trial and the near absence of blood could assist the defence. The error lay in the prosecution suggesting that the minute blood flecks strengthened the case and in the judge failing to direct the jury that unanalysable material, not even shown to be human blood, could not link the appellant to the crime. The evidence could be considered only against the defence claim that the absence of blood made the appellant’s guilt unlikely.
2. Good character. The appellant was entitled to a modified propensity direction. Counsel ordinarily had the duty to raise good character, but omission of the direction was not automatically fatal. The approach in Bholah v The State [2006] UKPC 9 was preferred where it differed from the more rigid observations in Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421. The assessment depended on the issues, any direct credibility conflict, the strength of the other evidence and the likely significance of the direction.
3. Identification and statements. A verification procedure after recognition was permissible because it was not used as a substitute for an identification parade or relied upon as independent identification evidence. The judge’s directions did not treat it as supporting the identification. Dock identification was not automatically inadmissible. The statements made during the procedure were spontaneous, not the product of a planned interview, and were admissible despite the absence of the safeguards applicable to planned questioning.
4. Jury discharge and proviso. The proper test after the inadvertent reference to the appellant’s statement was whether there was a real danger of prejudice rendering the trial unfair, not whether prejudice was inevitable. The judge ultimately applied the correct test. Under section 44(1) of the Supreme Court of Judicature Act 1964, the proviso required consideration of whether a properly directed jury would inevitably have convicted on the whole evidence. The Board concluded that the identification evidence and surrounding circumstances made that conclusion inevitable.
5. Fresh evidence. The absence of an explanation for the late production of the medical reports required careful scrutiny but was not conclusive. The reports raised a substantial issue concerning fitness to plead, fairness and safety. Given the death sentence, the fresh evidence was admitted and the safety question was remitted for determination by the Court of Appeal under section 47 of the Supreme Court of Judicature Act 1964.

1. Privy Council. In [2012] UKPC 2, the Board admitted fresh medical evidence and remitted the safety of the conviction to the Court of Appeal.
2. Court of Appeal of the Republic of Trinidad and Tobago. On 8 February 2008, the court dismissed the conviction appeal and applied the statutory proviso.
3. High Court of Trinidad and Tobago. Following a jury trial, the appellant was convicted of murder on 7 February 2007 and sentenced to death.