Nigel Brown v The State (Privy Council)

Main Issues – verification of identification, good character direction,  directions to the jury,  dock identification, admission of fresh evidence at appellate stage.

Nigel Brown v The State

[2012] UKPC 2

Privy Council Appeal No 0107 of 2010

From the Court of Appeal of Trinidad & Tobago

Main Issues – verification of identification, good character direction,  directions to the jury,  dock identification, admission of fresh evidence at appellate stage.


An intruder entered the Bailey’s house. He killed Mr. Bailey and injured Mrs. Bailey. She said she recognised him as someone she knew.  A crowd held the appellant. A minute amount of blood was found on his clothes, insufficient for analysis,  even to say if it were animal or human blood. Mrs. B was taken to a police station where the inspector pointed to the appellant, and she was asked if that was the man. She said ‘Nigel you come in my house and kill my husband.” The officer said he replied that “I only come in to help.”

Directions to the Jury

Prosecuting counsel told the jury that the blood on the clothes could help lead to the conclusion that the appellant was the killer. The trial judge told the jury it was up to them to decide between the competing submissions by counsel. Lord Kerr said that while the evidence was admissible:

“…what was objectionable was the way in which it was dealt with by the prosecution and the apparent endorsement of that approach by the judge”

as the judge should have told the jury that the blood evidence could not link the appellant to the crime.

Good character direction

The appellant had no relevant previous convictions. However, his character

was not put in issue by his counsel during the trial and therefore a good character

direction was not given to the jury.

The Privy Council said that:

“It is clear that it is counsel’s duty to raise the issue of his client’s good character where it is likely to be to the defendant’s advantage….”

The failure of counsel can therefore bring about an unsafe verdict. But it should not be automatically assumed that the omission to put a defendant’s character in issue represents a failure of duty on the part of counsel.”

This, the Board said, as defense counsel may have had reasons for that decision. However, in the absence of an explanation, the Board said it was necessary

“to examine whether the lack of a propensity direction has affected the fairness of the trial and the safety of the appellant’s conviction, on the basis that such a direction should have been given.”

The Board considered the judgments of in Teeluck [2005] 1WLR 2421 and Bhola v The State [2006] UKPC 9, in relation to the frequency with which failure to give good character evidence will cause an appellate court to find that a different verdict could have been given.

Teeluck at [2005] 1 WLR 2421, para 33(iv) Lord Carswell,

giving the judgment of the Board, said that “where credibility is in issue, a good character direction is always relevant”. And in para 33(ii) he said that the direction “will have some value and will therefore be capable of having some effect in every case in which it is appropriate [to give it and that if] it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial.”


“In Bholah, Lord Brown of Eaton-under-Heywood, delivering the judgment of the Board, said …The cases where plainly the outcome of the trial would not have been affected by a good character direction may not after all be so “rare”.”


Having considered them both, the Privy Council said in the instant case that:

“The Board considers that the approach in Bholah, if and in so far as it differs

from that in Teeluck, is to be preferred. There will, of course, be cases where it is simply not possible to conclude with the necessary level of confidence that a good character direction would have made no difference. Jagdeo Singh and Teeluck are obvious examples. But there will also be cases where the sheer force of the evidence against the defendant is overwhelming. In those cases it should not prove unduly difficult for an appellate court to conclude that a good character direction could not possibly have affected the jury’s verdict. Whether a particular case comes within one category or the other will depend on a close examination of the nature of the issues and the strength of the evidence as well as an assessment of the significance of a good character direction to those issues and evidence. It is therefore difficult to forecast whether it will be rarely or frequently possible to conclude that a good character direction would not have affected the outcome of a trial.”


Verification of identification.

The Privy Council referred to Brown and Isaac v The State [2003] UKPC 10, where the Law Lords had held that:

‘arranging a confrontation where the identifying witness had already identified the accused was not objectionable if it had “not been arranged to provide evidence of identification in substitution for a parade but simply to reassure the police that they had not arrested the wrong people” and provided it “was not relied upon at the trial as having any evidential value” (para 18).’


Dock Identification

The Privy Council referred to Tido v The Queen [2012] 1 WLR 115, para 17, where it was stated that:

 “dock identifications are not, of themselves and automatically, inadmissible.”

Admission of Evidence

The Privy Council said the trial judge was correct to allow into evidence the spontaneous statement made by Mrs. B on seeing the appellant at the station and his response, despite the submissions by counsel for the appellant  objecting to “(a) the absence of a lawyer; (b) the absence of a contemporaneous record of the questioning”; and (c) the absence of any independent verification of voluntariness.”

Lord Kerr said:

“Given that the appellant had been advised of his right to have someone

present at the verification procedure, that this was an entirely spontaneous and unexpected statement by Mrs. Bailey which elicited an equally spontaneous response, the Board is satisfied that the judge was right to admit it in evidence. The police officers made entries of the appellant’s responses in their pocket diaries and in the station diary. In the circumstances, this was all that could reasonably be required of them. They had not expected that this exchange would take place. There was therefore no reason for them to anticipate that a system of contemporaneous recording would be required. Likewise there was nothing about the circumstances in which the

need for independent verification of voluntariness could be foreseen. While the safeguards which the appellant claims should have been in place are important where an interview is planned and admissions are sought, it cannot be right that the absence of such safeguards where no questioning of the suspect is either planned or anticipated will render automatically inadmissible what is plainly highly relevant evidence.”


Admission of fresh evidence at the appellate stage

Fresh medical evidence not available to the courts below raised questions about the appellant’s fitness to plead. The Privy Council weighed the issues thus:

“The net position is that the Board is faced with a complete absence of

explanation as to why this issue was not ventilated in the courts below. Production of fresh evidence in these circumstances and an application that it be received will always call for the closest and most careful scrutiny. The Board is anxious to make clear that it should not be assumed that even highly persuasive evidence produced for the first time at the final appeal stage will be admitted. But the Board is conscious that section 47 of the Supreme Court of Judicature Act of Trinidad and Tobago gives the Court of Appeal power in a criminal appeal to receive fresh evidence “if it thinks it necessary or expedient in the interest of justice…

The ultimate penalty, a sentence of death, was imposed on the appellant.

Where a doubt remains about the correctness of the verdict which led to that penalty, any court would be bound to ensure that it should be, if it can be, removed or, if it cannot, that it should prevail against the carrying out of that sentence.”


The Privy Council ruled that the conviction was potentially unsafe given medical evidence about the appellant’s mental capacity and remitted the case to the Court of Appeal to determine the safety of the conviction in light of the fresh evidence.


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