Grant v The Queen (Jamaica)  UKPC 2 (16 January 2006)
Privy Council Appeal No.30 of 2005
Steven Grant Appellant
The State Respondent
THE COURT OF APPEAL OF
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 16th January 2006
- - - - - - - - - - - - - - - - -
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
[Delivered by Lord Bingham of Cornhill]
- - - - - - - - - - - - - - - - -
"You can look at it in the context of the other evidence that you have heard in the case and see what you make of it. See what you accept of it, what you reject but you must not look at it in a vacuum. You must look at it in the context of the case and attach to it such weight as you . . . think fit, bearing in mind that you did not have the benefit of seeing Mr Xavier Newton-Bryant. You did not have the benefit of hearing him cross-examined, so you will have [to] treat it in the way I have told. Attach such weight as you see fit to the statement."
The constitutionality of section 31D
"31D. Subject to section 31G, a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if it is proved to the satisfaction of the court that such person—
(a) is dead;
(b) is unfit, by reason of his bodily or mental condition, to attend as a witness;
(c) is outside of Jamaica and it is not reasonably practicable to secure his attendance;
(d) cannot be found after all reasonable steps have been taken to find him; or
(e) is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person."
Section 31G has no bearing on the present case. Heads (a), (b), (c) and (d) correspond closely with, and appear to be modelled on, section 23(2)(a), (b) and (c) of the Criminal Justice Act 1988 applicable in England and Wales. Section 31D(e), addressed to situations where a witness is kept away by fear, had no counterpart in the 1988 Act but is to the same effect as section 116(2)(e) of the Criminal Justice Act 2003. Section 31J of the 1995 Act gives new rights to a person against whom a statement is admitted under section 31D. It provides (so far as relevant):
"31J—(1) Where in any proceedings a statement made by a person who is not called as a witness in those proceedings is given in evidence pursuant to section 31D, 31E, 31F or 31G—
(a) any evidence which, if that person had been so called would have been admissible as relevant to his credibility as a witness, shall be admissible in the proceedings for that purpose;
(b) evidence may, with the leave of the court, be given of any matter which, if that person had been called as witness, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the party cross-examining him;
(c) evidence tending to prove that, whether before or after he made the statement, that person made (whether orally or in a document or otherwise) another statement inconsistent therewith, shall be admissible for the purpose of showing that the person has contradicted himself."
Section 31L declares that in any proceedings the court may exclude evidence if, in the opinion of the court, the prejudicial effect of that evidence outweighs its probative value.
"Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—
(a) . . . . the protection of the law;
. . . .
the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
The subsequent provisions of the chapter include section 20, which in subsection (6) provides:
"(6) Every person who is charged with a criminal offence—
(a) shall be informed as soon as reasonably practicable, in a language which he understands, of the nature of the offence charged;
(b) shall be given adequate time and facilities for the preparation of his defence;
(c) shall be permitted to defend himself in person or by a legal representative of his own choice;
(d) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses, subject to the payment of their reasonable expenses, and carry out the examination of such witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and
(e) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the English language."
The appellant relies in particular on the right to examine in person or by his legal representative the witnesses called by the prosecution before any court. He does not contend that section 20(6)(d) is incapable of amendment. But he points out that section 49 of the Constitution imposes special conditions on legislation amending section 20, and those conditions were not met when the 1995 Act was enacted. Thus if, as the appellant submits, section 31D of the 1995 Act amended section 20(6)(d) of the Constitution, it is to the extent of the amendment invalid.
(1) The Strasbourg court has time and again insisted that the admissibility of evidence is governed by national law and that its sole concern is to assess the overall fairness of the criminal proceedings in question: see, for example, Kostovski v Netherlands (1989) 12 EHRR 434, para 39; Windisch v Austria (1990) 13 EHRR 281, para 25; Lüdi v Switzerland (1992) 15 EHRR 173, para 43; Saidi v France (1993) 17 EHRR 251, para 43; Doorson v Netherlands (1996) 22 EHRR 330, para 67; PS v Germany (2001) 36 EHRR 1139, para 19. The specific rights set out in article 6(3) of the European Convention (and thus, by analogy, section 20(6) of the Constitution) are "specific aspects of the right to a fair trial" (Kostovski v Netherlands, above, para 39) or "particular aspects of the right to a fair trial" (Doorson v Netherlands, above, para 66), and the right to a fair trial can never be compromised in any circumstances. But the constituent rights in article 6 and section 20(6) are not themselves absolute: Brown v Stott (Procurator Fiscal, Dunfermline)  1 AC 681, 704. The Strasbourg court has been astute to avoid treating the specific rights set out in article 6 as laying down rules from which no derogation or deviation is possible in any circumstances. What matters is the fairness of the proceedings as a whole.
(2) Just as section 13 of the Constitution recognises that individual rights cannot be enjoyed without regard to the rights of others, so the Strasbourg court has recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, and has described the search for that balance as inherent in the whole Convention: Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69; Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, para 52; Brown v Stott, above, p 704. Thus the rights of the individual must be safeguarded, but the interests of the community and the victims of crime must also be respected. An example, not based on the present facts, illustrates the point. In Jamaica, as in England and Wales, as already noted, the statement of a witness may be adduced in evidence if he is shown to have absented himself through fear of the consequences to him if he gives evidence. In the case of a prosecution witness, such fear is likely to have been induced by or on behalf of a defendant wishing to prevent adverse evidence being given. As observed by Potter LJ in R v M(KJ)  EWCA Crim 357,  2 Cr App R 322, para 59, echoed by Waller LJ in R v Sellick  EWCA Crim 651,  1 WLR 3257, paras 36, 52-53, it would be intolerable if a defendant shown to have acted in such a way could rely on his human rights under article 6 (or section 20) to prevent the admission of hearsay evidence. Where a witness is unavailable to give evidence in person because he is dead, or too ill to attend, or abroad, or cannot be traced, the argument for admitting hearsay evidence is less irresistible, but there may still be a compelling argument for admitting it, provided always that its admission does not place the defendant at an unfair disadvantage.
(3) While, therefore, the Strasbourg jurisprudence very strongly favours the calling of live witnesses, available for cross-examination by the defence, the focus of its inquiry in any given case is not on whether there has been a deviation from the strict letter of article 6(3) but on whether any deviation there may have been has operated unfairly to the defendant in the context of the proceedings as a whole. This calls for consideration of the extent to which the legitimate interests of the defendant have been safeguarded. For reasons given in paragraph 21 below, the law of Jamaica, properly applied, provides adequate safeguards for the rights of the defence.
(1) Section 31D prescribes with clarity the conditions to be met before application may be made. Relevant to this case is the requirement that all reasonable steps must have been taken to secure the attendance of the witness. The Court of Appeal was right to stress in R v Michael Barrett (Appeal No. 76/97, unreported, 31 July 1998) that the section refers to all reasonable steps.
(2) Section 31J gives the defence an enhanced power to challenge the credibility of the author of a hearsay statement.
(3) Section 31L acknowledges the discretion of the court to exclude evidence if it judges that the prejudicial effect of the evidence outweighs its probative value. In R v Sang  AC 402, some members of the House of Lords (notably Lord Diplock at pp 434, 437 and Viscount Dilhorne (pp 441-442)) interpreted this discretion narrowly, and in Scott v The Queen  AC 1242, 1256-1257, the Board appears to have accepted that reading. It is not, however, clear that the majority in R v Sang favoured a similarly narrow interpretation (see Lord Salmon at pp 444-445, Lord Fraser of Tullybelton at p 449 and Lord Scarman at pp 453, 454, 457). In any event, it is, in the opinion of the Board, clear that the judge presiding at a criminal trial has an overriding discretion to exclude evidence which is judged to be unfair to the defendant in the sense that it will put him at an unfair disadvantage or deprive him unfairly of the ability to defend himself. Such a discretion has been recognised by the Court of Appeal in R v Donald White (1975) 24 WIR 305, 309, and R v Michael Barrett, above. It has been recognised by the Board in Scott v The Queen, above, pp 1258-1259 and Henriques v The Queen  1 WLR 242, 247: both these appeals concerned the admission of depositions, but the need for a judicial discretion to exclude is even greater when the evidence in question has never been given on oath at all. In England and Wales, the discretion has been given statutory force: see section 25(1) of the Criminal Justice Act 1988; R v Lockley  2 Cr App R 554, 559-560; R v Gokal  2 Cr App R 266, 273; R v Arnold  EWCA Crim 1293, para 30. Conscientiously exercised, this discretion affords the defendant an important safeguard.
(4) The trial judge must give the jury a careful direction on the correct approach to hearsay evidence. The importance of such a direction has often been highlighted: see, for example, Scott v The Queen, above, p 1259; Henriques v The Queen, above, p 247. It is not correct to say that a statement admitted under section 31D is not evidence, since it is. It is necessary to remind the jury, however obvious it may be to them, that such a statement has not been verified on oath nor the author tested by cross-examination. But the direction should not stop there: the judge should point out the potential risk of relying on a statement by a person whom the jury have not been able to assess and who has not been tested by cross-examination, and should invite the jury to scrutinise the evidence with particular care. It is proper, but not perhaps very helpful, to direct the jury to give the statement such weight as they think fit: presented with an apparently plausible statement, undented by cross-examination, by an author whose reliability and honesty the jury have no extraneous reason to doubt, the jury may well be inclined to give it greater weight than the oral evidence they have heard. It is desirable to direct the jury to consider the statement in the context of all the other evidence, but again the direction should not stop there. If there are discrepancies between the statement and the oral evidence of other witnesses, the judge (and not only defence counsel) should direct the jury's attention specifically to them. It does not of course follow that the omission of some of these directions will necessarily render a trial unfair, but because the judge's directions are a valuable safeguard of the defendant's interests, it may.
The exercise of discretion
"The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say 'incredible', then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called."
In the present case the names of Bryant and Kinglock did not appear on the back of the indictment, but their inclusion in notices to adduce made clear the Crown's intention to rely on their evidence; and there has never been any suggestion that either was regarded as incapable of belief or immaterial.