Malik Cox v The King (Turks and Caicos Islands)

An appellate court reviewing a second appeal must ask whether the intermediate appellate court was entitled to uphold the trial decision. Where the case turns on witness credibility and reliability, substantial respect is owed to the trial judge, who saw and heard the witnesses and may possess relevant local knowledge. The Board should intervene only in an exceptional case. An immunity agreement containing leading questions and incentives to give evidence may create serious risks, but it does not automatically make the evidence inadmissible or unreliable. The trial judge must exercise special care and caution. A factual mistake about supporting identification evidence does not require interference where the remaining evidence independently supports the identification and conviction. Unacceptable prosecution disclosure failures may be criticised without making the trial unfair.

The appellant was convicted of murdering Andreika Stubbs in the Turks and Caicos Islands after a trial before Aziz J, sitting without a jury. The prosecution case relied principally on Anthony Francis, who gave evidence under an undertaking in return for the withdrawal of charges, and Tyrone Smith, who identified the appellant as the person who shot him.

The Court of Appeal of the Turks and Caicos Islands dismissed the appeal on 22 May 2020 (CR-AP 20/2018), holding that the trial judge was entitled to accept both witnesses as credible and reliable and that the conviction was not unreasonable or unsupported by the evidence. The appeal to the Board concerned whether the Court of Appeal was entitled to reach that conclusion.

1. Appeal dismissed. The Board would advise His Majesty that the appeal should be dismissed. As a second appeal court, it had to decide whether the Court of Appeal was entitled to uphold Aziz J’s decision under section 7(1) of the Court of Appeal Ordinance (Turks and Caicos Islands). The Board therefore considered, one step removed, whether the trial judge’s conclusions were unreasonable, unsupported by the evidence, legally erroneous or affected by a miscarriage of justice.
2. Particular deference was required because Aziz J had seen and heard the witnesses, the issues turned principally on credibility and reliability, and the courts below had the advantage of local knowledge. The Board would interfere only in an exceptional case. The approach was consistent with Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21, R v Crawford (Cayman Islands) [2015] UKPC 44, Dass v Marchand [2021] UKPC 2 and Sancus Financial Holdings Ltd v Holm (Practice Note) [2022] UKPC 41.
3. The undertaking given to Anthony Francis contained leading questions and provided a clear incentive to give evidence. Nevertheless, Aziz J had directed himself more than once to exercise special care and caution. His admission of the evidence and assessment of its credibility disclosed no error of law, and the Court of Appeal was entitled not to interfere.
4. The Board warned that the undertaking should not be used as a precedent in future cases. Immunity agreements may be necessary, but leading questions and promised immunity may undermine the validity and weight of the evidence.
5. Aziz J had wrongly treated Franklyn Saintelmon’s evidence as identifying the appellant as Anthony Francis’s companion. That error was not material. Tyrone Smith provided independent identification evidence, and Ivenia Penn-Henry’s evidence was also capable of supporting the identification. A victim may be an independent witness where there is no interest to serve.
6. The same deferential approach applied to Tyrone Smith’s delayed identification. Aziz J was entitled, in light of the evidence and local context, to regard Smith’s explanation as plausible and to find him credible and reliable. The Board found no wrong decision on a point of law and no miscarriage of justice.
7. The prosecution’s late disclosure of the undertaking and surrounding circumstances was unacceptably lax. It placed the defence at a disadvantage, but did not undermine the fairness of the trial. The appeal was therefore dismissed.

• Privy Council: Appeal dismissed. The Board held that the Court of Appeal was entitled to uphold the conviction.
• Court of Appeal of the Turks and Caicos Islands: Appeal against conviction dismissed on 22 May 2020 in CR-AP 20/2018.
• Supreme Court of the Turks and Caicos Islands: Aziz J convicted the appellant of murder and sentenced him to life imprisonment.