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The appellant (‘D’) appealed by special leave against the dismissal by the Court of Appeal of the Bahamas of his appeal against a conviction for murder. D had been charged with the murder of a man in Grand Bahamas, who had been shot dead. When the police had arrived at the scene they had taken a statement from an eye witness (‘W’) who had identified D as the one of two men who had been at the scene of the crime. W fled the scene when a fight broke out. As he ran away he heard a shot ring out. Upon arrest, D confessed to the killing and claimed it was an accident that occurred in a fight over a cocaine deal. D was tried three times for the offence. The first trial resulted in the jury being unable to reach a unanimous verdict, the second trial resulted in discharge of the jury and at the third trial D was convicted. D submitted on appeal that his post-arrest statement was inadmissible because it had been altered by a police officer (‘P’); that the identification evidence was inadmissible because there should have been an identification parade; and that he should not have been tried for a third time.
(1) The first ground of appeal was rejected because there was nothing to contradict the police officer’s assertion that D had agreed to the charges. The amendments made to the statement had not been concealed. P’s honesty or reliability had not been undermined. By the end of the trial D’s challenge to the voluntariness of his statement was threadbare. His supporting evidence was extremely weak; he hadn’t given sworn evidence to the jury to support the challenge. (2) No issue as to identification arose in the light of D’s confession, D had not requested a parade. In addition, W’s evidence had unequivocally identified D. The judge had correctly directed the jury on the issue of identification. (3) Although it was common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries had been unable to agree, that was no more than a convention (R v Henworth (2001) Times, January 30, 2001). Whether a second retrial should be permitted in the present case depended on an informed and dispassionate assessment of how best to serve the interests of justice. The third trial was not unlawful on the grounds of oppression or abuse of process.
The defendant’s appeal against his murder conviction was dismissed as the judge had been right to direct the jury that they were entitled to rely on identification evidence alone and as there was no absolute prohibition in law against holding second retrials.
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