Saunders v The Queen (Bahamas)

A conviction is not rendered unsafe merely because the defence failed to obtain independent scientific evidence where the relevant exhibits, analysis and conclusions were disclosed, the defence had an opportunity to pursue testing, and the request was not pursued. After a lengthy delay, the appellate court will not speculate whether testing might have assisted. An isolated inaccurate statement about the standard of proof must be assessed in context; clear directions elsewhere may prevent material misdirection. Strong or unnecessary judicial comment on expert evidence does not necessarily make a trial unfair where the jury’s fact-finding role is preserved and it is told that the judge’s opinions need not be accepted.

The appellant, Saunders v The Queen (Bahamas), was convicted by a majority of rape in the Supreme Court of the Commonwealth of the Bahamas in 1996 and sentenced to 14 years’ imprisonment, consecutive to an existing sentence. He was acquitted of armed robbery. The prosecution case included DNA evidence linking the appellant and the complainant to a tissue recovered at the scene.

The Court of Appeal of the Bahamas dismissed the appeal against conviction and sentence on 7 October 1997 without giving reasons. Permission to appeal to the Privy Council was granted in 2018 on limited grounds. The appeal concerned the alleged failure to provide samples for independent DNA analysis, directions on the standard of proof, corroboration and circumstantial evidence, and the fairness of the summing-up. The central questions were whether the defence had been denied a proper opportunity to obtain expert evidence and whether the directions rendered the conviction unsafe.

Lord Lloyd-Jones delivered the judgment of the Board. The appeal was dismissed.

1. Independent DNA analysis. The Board accepted that a request for samples may have been made, but found that it was not pursued. No expert was instructed, no arrangements were made for transfer of the samples, and the matter was not raised when an adjournment was sought shortly before trial. The defence knew of the exhibits, the DNA analysis and the prosecution expert’s conclusions well before trial. The defence was therefore not denied the opportunity to obtain expert evidence. After approximately 23 years, it was too late to rely on any resulting lack of evidence, and the Board declined to speculate whether testing would have assisted.
2. Non-disclosure. This was not a case in which the prosecution withheld evidence unknown to the defence. It was instead a question of whether the defence had pursued the opportunity to obtain its own expert report. The distinction was material.
3. Standard of proof. An apparently inaccurate statement in the summing-up did not amount to material misdirection when read in context. The judge had directed the jury, both before and immediately after the statement, that guilt had to be proved beyond reasonable doubt.
4. Corroboration and circumstantial evidence. There was ample corroboration. The actus reus was supported by the complainant’s account, her distress and condition, the discovery of the tissue and the stains on it. The appellant’s involvement was supported by the tissue and the expert DNA evidence. The direction on circumstantial evidence was appropriate and fair.
5. Fairness of the summing-up. The judge’s description of the DNA evidence as damning was unfortunate, and repetition of the statistical probability was unnecessary. Nevertheless, the directions could not have misled the jury. The judge made clear that factual matters were for the jury and that it was not required to accept any opinion expressed by him. The conviction was accordingly safe.

The Board additionally emphasised, as a concluding observation, the desirability and importance of public funding for impecunious defendants facing grave criminal charges involving complex scientific expert evidence.

• Privy Council: In [2020] UKPC 4, the appeal was dismissed.
• Court of Appeal of the Commonwealth of the Bahamas: Appeals against conviction and sentence were dismissed on 7 October 1997, and the conviction and sentence were confirmed without reasons.
• Supreme Court of the Commonwealth of the Bahamas: The appellant was convicted by a majority of 8–4 of rape on 15 October 1996 and sentenced to 14 years’ imprisonment, consecutive to an existing sentence. He was acquitted of armed robbery.