James Miller v The King (Bahamas)

For attempted murder, the prosecution must prove an actual intention to kill. Recklessness or an objective duty to appreciate a risk is insufficient. Section 12 of the Penal Code supplies evidential guidance on intention. It does not shift the burden to the defence, and intention remains for the jury on the whole evidence. Ordinarily, a short direction asking whether the jury is sure of an intention to kill is preferable. A direction that the accused “ought to have realised” death was probable or a great risk is a misdirection. A conviction may nevertheless stand under the statutory proviso where the evidence is overwhelming and no properly directed jury could have acquitted. An attempt normally attracts a proportionate sentencing discount, but the full-offence sentence may be imposed in an extreme case.

The appellant was convicted in the Supreme Court at Nassau of attempted murder, armed robbery and firearms offences arising from a bank robbery and shooting of a police officer. The Court of Appeal of The Bahamas allowed the appeal against the grievous harm conviction following a Crown concession, dismissed the remaining conviction grounds, quashed the life sentence for attempted murder and substituted 40 years’ imprisonment.

The Privy Council granted leave on the issues whether the trial judge had misdirected the jury about the intention required for attempted murder under the Penal Code, and whether the substituted sentence was legally erroneous or manifestly excessive.

Both appeals dismissed. The Board unanimously advised that the appeal against conviction and the appeal against sentence should be dismissed.

1. Under sections 83 and 290 of the Penal Code, attempted murder requires proof that the accused intended to kill. Murder cannot be committed by reckless conduct. The Board referred to Dean v R (1989-90) 1 LRB 534, Rahming v R [2002] UKPC 23 and Pinto v R (2011) 2 BHS J. No.77.
2. Section 12 of the Penal Code contains evidential provisions assisting the jury to determine intention. Subsections (1) and (2) address purpose and belief in probable consequences. Subsection (3) provides a route for establishing such belief. It does not impose a burden of proof on the defence. Intention remains a question for determination from the whole evidence.
3. In a case where no evidence or submission raises an issue about an alternative intention or foresight of consequence, a simple direction that the jury may convict only if sure that the gunman intended to kill is sufficient. The jury may infer intention from the surrounding facts, including the weapon used, the manner of its use and the circumstances of the attack.
4. Merely reading section 12(3) without proper explanation is inadequate. Here, the trial judge’s directions wrongly conveyed that intention to kill was the only available inference and appeared to place an evidential burden on the appellant. The direction that the defendants “ought to have realised” that death was probable or involved a great risk introduced an objective negligence standard and was a misdirection.
5. The Board did not accept the remaining factual criticisms. No separate direction was required about the shooting distance or an alternative purpose, since those matters were not raised as live issues.
6. The proviso in section 13 of the Bahamas Court of Appeal Act involves a high test. Despite the misdirections, the evidence was overwhelming, and no reasonable jury properly directed on intention could have failed to convict. No miscarriage of justice had occurred, so the conviction appeal was dismissed.
7. Although an attempt will ordinarily attract a proportionate discount from the sentence for the completed offence, an extreme case may justify the same sentence. The need for deterrence may be indistinguishable between attempted murder and murder, although retribution may be less. The 40-year sentence was severe but not manifestly excessive in the circumstances.

• Privy Council: On appeal from the Court of Appeal of The Bahamas, the Board dismissed the appeals against conviction and sentence in [2023] UKPC 10.
• Court of Appeal of The Bahamas: On 14 January 2016, the court allowed the appeal against the grievous harm conviction following a Crown concession, dismissed the remaining conviction grounds, quashed the life sentence for attempted murder and substituted 40 years’ imprisonment. The remaining sentences were affirmed.
• Supreme Court at Nassau: A jury convicted the appellant on all charges faced, including attempted murder, and he was sentenced to life imprisonment for attempted murder, with other sentences ordered to run concurrently.