Caryn Moss v The King (Bahamas)

Where the legal availability of duress to a conspiracy-to-murder charge is unresolved, an appellate court may assume its availability and decide the appeal on whether the evidence satisfied the defence’s requirements.

A trial judge must leave a possible defence to the jury even if it was not relied on or was expressly disclaimed, unless the evidence was wholly incredible or so tenuous that no reasonable jury could accept it. Indirect threats may be assessed in context. Coercion falling short of strict duress may nevertheless reduce culpability at sentence.

The appellant was convicted in the Supreme Court of The Bahamas of conspiracy to murder under the Penal Code and sentenced to 20 years’ imprisonment. The Court of Appeal dismissed her conviction and sentence appeals, allowed the Director of Public Prosecutions’ cross-appeal, set aside the sentence and imposed 35 years’ imprisonment in SCCrApp & CAIS No. 230 of 2018 and SCCrApp & CAIS No. 238 of 2018.

Before the Board, the appellant argued that duress was available and should have been left to the jury, and that coercion should have mitigated sentence. The Board assumed, without deciding, that duress could be a defence and considered whether the evidence raised it. It also considered whether the lower courts had properly assessed coercion as mitigation.

Conviction

1. The appeal against conviction was dismissed. The Board assumed, without deciding, that duress could in law be a defence to conspiracy to murder. The appeal could be resolved because the defence was unavailable on the facts.
2. Under the common law applied through section 2 of the Declaratory Act, a trial judge must identify and leave to the jury any possible defence arising from the evidence, even where it was not relied on or was expressly disclaimed. The duty does not extend to a possibility which is beyond reasonable doubt without substance because the evidence is wholly incredible, tenuous or uncertain. The Board applied the approach in Von Starck v The Queen [2000] 1 WLR 1270.
3. The sixth limitation on duress requires a genuine and objectively reasonable expectation that threatened retribution will follow immediately or almost immediately, together with a genuine and objectively reasonable belief that no reasonable evasive action was available. The appellant had not asserted that she could take no evasive action or that retribution would be immediate. There was an appreciable period in which she could have gone to the police or declined to carry out the plan. The defence therefore did not arise on the facts.
4. The Board disagreed with the Court of Appeal’s narrow reasoning on the other limitations. Although there was no express threat of death or serious injury, the gangland context meant that indirect statements and surrounding circumstances provided sufficient evidence for a jury to consider whether such a threat existed and whether the appellant’s belief was genuine and objectively reasonable.

Sentence

1. Under section 90(1) of the Penal Code, conspiracy is punished as the substantive offence where that offence is committed. The 30-to-60-year range under section 291(1)(b) was treated as a guideline. A departure below it required extenuating circumstances and reasons that were documented and demonstrably explicable.
2. Coercion which does not satisfy the strict requirements of duress may still reduce true culpability and may constitute an extenuating circumstance or mitigating factor. The lower courts failed specifically to consider whether the appellant acted in response to a degree of coercion. The 35-year sentence was quashed and re-sentencing was remitted to the Court of Appeal of The Bahamas.

• Privy Council: The conviction appeal was dismissed. The sentence imposed by the Court of Appeal was quashed and re-sentencing was remitted to that court.
• Court of Appeal of the Commonwealth of The Bahamas: The appellant’s conviction and sentence appeals were dismissed. The Director of Public Prosecutions’ cross-appeal was allowed, the 20-year sentence was set aside and a sentence of 35 years’ imprisonment was imposed: SCCrApp & CAIS No. 230 of 2018 and SCCrApp & CAIS No. 238 of 2018.
• Supreme Court of The Bahamas: Bethel J, sitting with a jury, convicted the appellant of conspiracy to murder and sentenced her to 20 years’ imprisonment less one year spent on remand.