Bain v The Queen

There is no absolute constitutional right to continuous legal representation during a criminal trial. However, where defence counsel seeks to withdraw, the trial judge must carefully manage the situation. The judge should seek to retain counsel, clarify the defendant’s concerns, explain the consequences of self-representation, consider time for reflection, assess likely prejudice, and consider an adjournment for alternative representation. The decision to continue with an unrepresented defendant requires consideration of all relevant circumstances, including fault, manipulation, informed choice, the stage and history of the trial, the defendant’s abilities, the seriousness and complexity of the case, available representation, and the effect of delay. A conviction may not be saved by a proviso permitting dismissal where no miscarriage of justice occurred if the evidence itself may have been materially affected by the unfairness.

The appellant was convicted in The Bahamas of kidnapping, robbery, housebreaking and murder. His counsel withdrew shortly after the trial began, following disagreement about the conduct of the defence and access to disclosed material. The trial proceeded with the appellant unrepresented. The Court of Appeal dismissed the conviction appeal and applied the proviso in section 13 of the Court of Appeal Act, holding that a properly directed jury would inevitably have convicted him. It substituted a determinate sentence of 55 years for life imprisonment for murder.

Before the Privy Council, the principal issues were whether the withdrawal of counsel had been properly managed, whether the appellant had suffered serious prejudice, and whether the proviso could properly be applied.

1. Appeal against conviction allowed. The Board held that the trial judge seriously mismanaged the withdrawal of counsel. The judge did not seek to persuade counsel to remain, investigate the underlying disagreement, correct the appellant’s misunderstanding about disclosure, explain the consequences of self-representation, allow time for reflection, assess the likely prejudice, or consider an adjournment to obtain alternative representation.
2. The principles from Robinson v The Queen, [1985] AC 956, Dunkley v The Queen, [1995] 1 AC 419, and Mitchell v The Queen, [1999] 1 WLR 1679, were summarised and applied. There is no absolute right to legal representation. The discretion to continue with an unrepresented defendant must be exercised carefully, particularly in a murder trial. A defendant’s stated wish to act in person must be examined to determine whether it is genuinely free and informed.
3. The appellant’s choice was not properly informed. He was influenced by the desire to obtain a second set of documents, was offered no alternative counsel, and had not been told what conducting the trial would involve. The relevant circumstances included the murder charge carrying the possibility of the death penalty, the early stage of the trial, his limited education and reading ability, the importance of skilled cross-examination, the voir dire, and the need to deal with witnesses and evidential issues.
4. The lack of representation caused serious prejudice. The appellant failed effectively to challenge the credibility and identification evidence of the prosecution’s key witness, Davis. He also failed to raise substantial admissibility arguments concerning Dr Reddy’s medical report. The report was significant to the admission and assessment of the alleged confession.
5. The Court of Appeal’s conclusion that the evidence would inevitably have produced a conviction was accepted as justified on the evidence actually adduced. But that evidence emerged from an unfair trial and might have been materially different had the appellant been represented. The proviso in section 13 of the Court of Appeal Act could therefore not be relied on; a miscarriage of justice had occurred.
6. The sentence appeal did not arise after the conviction appeal was allowed. The Board nevertheless observed that basic fairness required an opportunity to make submissions on the length of a determinate sentence before the 55-year sentence was imposed. The case was remitted to the Court of Appeal to consider whether there should be a retrial.

• Privy Council: allowed the appeal against conviction and remitted the case to the Court of Appeal to consider the question of a retrial.
• Court of Appeal of the Commonwealth of The Bahamas: dismissed the appeal against conviction on 21 January 2016 and applied the proviso in section 13 of the Court of Appeal Act. It allowed the sentence appeal in part by substituting a 55-year sentence for life imprisonment for murder.
• Trial court: convicted the appellant of kidnapping, robbery, housebreaking and murder on 2 May 2013 and imposed concurrent sentences, including life imprisonment for murder.