The appellant, Caryn Moss, was tried and convicted on a charge of conspiracy with others to murder O’Neil Marshall (“the deceased”) contrary to section 89(1) and section 291(1)(b) of the Penal Code, Chapter 84, as amended by the Penal Code (Amendment) Act 2011 (“the Code”). Bethel J, the trial judge, imposed a sentence of 20 years’ imprisonment less one year spent on remand. The appellant appealed against her conviction and sentence to the Court of Appeal of the Commonwealth of The Bahamas and the Director of Public Prosecutions cross-appealed against the sentence as wrong in principle and unduly lenient.
The principal issues on the appeal against conviction were: (a) whether the trial judge had misdirected the jury that duress was not a defence to the offence of conspiracy to murder and (b) whether on the facts the defence of duress ought to have been, but was not, left by the trial judge to the jury. The Court of Appeal in a judgment delivered by Evans JA, with which Crane-Scott and Jones JJA agreed, (SCCrApp & CAIS No. 230 of 2018) dismissed the appeal against conviction finding (a) that the trial judge was not wrong to direct the jury that the defence of duress was not open to the appellant on a charge of conspiracy to murder where the murder was actually committed; and (b) that the defence of duress did not arise on the facts of this case. The Court of Appeal also dismissed the appellant’s appeal against sentence.
In relation to the cross-appeal by the Director of Public Prosecutions (SCCrApp & CAIS No. 238 of 2018), the Court of Appeal held that the trial judge had erred in principle by failing to adhere to the sentencing guideline of 30 to 60 years’ imprisonment in circumstances where the trial judge had found there to be no extenuating circumstances. The sentence of 20 years’ imprisonment was found to be unduly lenient and was set aside. The Court of Appeal imposed a sentence of 35 years’ imprisonment to take effect from the date of conviction, less the time spent on remand.
The appellant now appeals to the Board against both conviction and sentence.
In relation to the appeal against conviction, the appellant maintains that duress is a defence to the offence of conspiracy to murder and on the facts that the defence ought to have been left to the jury. However, at the start of the hearing the Board indicated that it would assume, without deciding, that duress was a defence to conspiracy to murder and invited submissions on the question whether – assuming, without deciding, that duress is a defence to conspiracy to murder – the defence ought on the facts to have been left to the jury. If the answer to that question is “no”, then the Board considers that the question whether duress can in law be a defence to conspiracy to murder should be determined in a case in which it arises on the particular facts.
In relation to the appeal against sentence, the appellant’s principal submission is that, even if duress did not afford her a defence, the Court of Appeal failed to take into account the mitigating factor that the appellant had been subjected to coercion.