Nardis Maynard v The King (St Christopher and Nevis)

Credible fresh evidence is not necessarily admissible on appeal. Under Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act 2009, it must also be sufficiently cogent that, if received, it would afford a ground for allowing the appeal.

Where identification is the central issue, a full Turnbull direction is required even in a recognition case. The judge must identify specific weaknesses and inconsistencies; a general warning is insufficient. A good character direction is ordinarily crucial where the defendant’s credibility is central, particularly in an alibi case. The proviso in section 44(1) should be applied only where a properly directed jury would inevitably convict. Cumulative defects may make sustaining the conviction an unfair miscarriage of justice.

The appellant was convicted of murder in St Christopher and Nevis in 2004. The prosecution case depended principally on eyewitness identification, while the defence was alibi. His conviction appeal was initially abandoned, but that abandonment was later declared a nullity.

On the restored appeal, the Court of Appeal refused to admit an affidavit from a prospective alibi witness, held that defects in the identification directions and the absence of a good character direction did not render the conviction unsafe, and dismissed the appeal by applying the proviso in section 44(1) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act 2009. The central questions before the Board concerned fresh evidence, identification directions, good character, and the statutory proviso.

1. Fresh evidence. The Board accepted that Yvette Maynard’s affidavit was capable of belief. Credibility and cogency were distinct questions. The affidavit did not provide sufficiently cogent alibi evidence and did not satisfy the requirement in section 49 of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act 2009 that the new evidence, if received, would afford a ground for allowing the appeal. The evidence was therefore not admitted.
2. Identification evidence. A full direction in accordance with R v Turnbull [1977] QB 224 was required, notwithstanding that the witnesses claimed recognition. The judge had to identify specific weaknesses and inconsistencies and draw them to the jury’s attention. The general warning given at trial, without identifying any specific feature that might affect reliability, was insufficient.
3. The number of men seen during the attack was a significant potential weakness. The dock identification by Mr Hamilton, the late naming of the appellant, the failure to identify him at the scene, and the manner in which the witnesses’ statements were obtained also required prominent treatment. The Board accepted that some differences in duration, height and clothing could reasonably be explained, and that an identification parade would have had limited value on these facts. The appellate court could assess the consequences of the misdirection when considering the proviso, but had to avoid substituting appellate assessment for trial by jury: Cassell v The Queen [2016] UKPC 19.
4. Good character. The direction was of crucial importance because the appellant’s credibility was central to his alibi. Both the credibility and propensity limbs were required. The independent medical evidence corroborated the mechanics and location of the attack, but did not necessarily corroborate the reliability of the identification or constitute other evidence of the appellant’s guilt. The Board applied the reasoning in R v Williams (James) [2011] EWCA Crim 1739.
5. Proviso and outcome. Considering the proviso de novo, the Board was not satisfied that a properly directed jury would inevitably have convicted. The cumulative defects made it plainly unfair to sustain the conviction. The appeal was allowed and the matter was remitted to the Court of Appeal on whether there should be a retrial.

1. Privy Council: On 1 August 2024, the appeal against conviction was allowed. The Board declined to apply the proviso and advised remission to the Court of Appeal on the question of retrial.
2. Court of Appeal of St Christopher and Nevis: On 25 March 2022, the abandonment of the conviction appeal was declared a nullity and the restored appeal was heard. On 10 June 2022, the appeal was dismissed. The court refused the fresh evidence, upheld the conviction, and applied the proviso in section 44(1) of the Eastern Caribbean Supreme Court (Saint Christopher and Nevis) Act 2009.
3. Court of Appeal of St Christopher and Nevis: On 22 May 2006, the original appeals against conviction and sentence were dismissed, although the abandonment of the conviction appeal was subsequently declared a nullity.