Rowan Pennington-Benton Instructed by Charles Russell Speechlys LLP (London) for the Respondent.
Lord kitchin and Lord Burrows:
1. Introduction and factual background
On 16 July 2010, Andrea Donaldson was robbed at gunpoint by a number of men. The appellant, Vinson Ariste, who was aged 20 at the time, was arrested by the police at his home on 21 July 2010. It appears that the police were looking for his brother but, on finding that the brother was not at home and that his whereabouts were unknown, arrested the appellant instead. The appellant was detained in police custody between 21 and 27 July 2010. Between 22 and 25 July 2010, he confessed, during police interviews, to a number of offences including the robbery of Ms Donaldson. His confessions covered at least six offences or sets of offences, apart from the robbery of Ms Donaldson, including murder. At the time, he had no previous convictions and, apart from his confession, there was no other evidence linking him to the robbery of Ms Donaldson (or, it would appear, to any of the other offences which he admitted).
No audio or video recording was made of the interviews conducted by the police. But if the record of the interview in which the appellant confessed to the robbery of Ms Donaldson read out at his trial is to be believed, he volunteered a full account of his participation in this offence purely of his own accord without any encouragement and without being confronted with any evidence implicating him in the robbery. The respondent has not suggested any motive for this unusual act of self-sacrifice.
The appellant alleges that the confession was untrue and was not made voluntarily but was made by him as a result of being beaten and suffocated with a bag and water by the police (and impliedly he makes the same allegation about the other confessions). When he arrived in police custody, the detention record stated that the appellant appeared well and in good health. When he was transferred to prison on 27 July 2010, the prison doctor recorded that he had a number of injuries including a temporal abrasion, multiple handcuff abrasions, a skin avulsion on the left wrist, bruising of the buttocks, and a 6cm abrasion or ulcer on his right buttock. The doctor also records that the appellant told him that he had been beaten by the police on his arrest on 21 July 2010.
The appellant had no legal representation at the time of his detention. He alleges that he had asked for a lawyer and the police officers had beaten him and told him that he did not need a lawyer. At the trial in March 2012, the appellant again had no legal representation. He alleges that he asked for the court to appoint a lawyer for him but that that request was refused by the judge.
The judge, after a voir dire but without giving any reasons, decided that the confession was admissible. On the basis of the confession the appellant was found guilty by the jury of the armed robbery and, on 5 June 2012, he was sentenced to 15 years imprisonment. In a very short judgment, his appeal against conviction was dismissed by the Court of Appeal on 18 February 2013. Permission to appeal was granted by the Board on 31 March 2021.
The appellant contends that, on the grounds of appeal set out below, his appeal against conviction should be allowed, applying section 13(1) of the Court of Appeal Act 2006 (see para 8 below), because his conviction is unsafe or unsatisfactory; or because there has here been a wrong decision or misdirection by the judge on a question of law or fact; or that he did not receive a fair trial. He also contends that the proviso under section 13(1) does not apply because there has been a serious miscarriage of justice. His grounds of appeal are:
(i) Ground 1: the lack of legal representation at the time of his original detention and questioning was a breach of his rights under Articles 19(2), 20(1) and 20(2)(d) of the Constitution of the Commonwealth of the Bahamas.
(ii) Ground 2: his lack of legal representation at the time of the trial breached his right to a fair trial.
(iii) Ground 3: the judge with conduct of the trial erred in finding, beyond reasonable doubt, that the appellant’s confession had not been obtained by oppression and could therefore be admitted.
(iv) Ground 4: inadequate directions were given to the jury by the trial judge in relation to the confession and evidence going to the appellant’s character.
It is convenient to deal initially with the grounds of appeal relating to the confession (that is to say, grounds 3 and 4). It is only if those grounds fail that it will be necessary to go on to consider grounds 1 and 2.
2. The statutory test to be applied in deciding whether to allow an appeal against a criminal conviction