Edwards v. The Queen (Jamaica)  UKPC 23 (25 April 2006)
Privy Council Appeal No 29 of 2005
Garnett Edwards Appellant
The Queen Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 25th April 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
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[Delivered by Lord Carswell]
"He is of a dark-brown complexion, low cut hair, clean face, oval shape face, average built, wearing a blue shirt, m'lord. The voice ordinary, not rough, not soft, but moderate, m'lord".
He described him as about five feet six inches tall and about 23 years of age. He had never seen him before the time of the shooting. Bailey was unable to say, when asked in cross-examination, whether the man was wearing trousers or shorts or whether he wore shoes, but claimed that that was because he had been focusing on his face and upper body and not because the incident happened so quickly.
"Now, in order to amount to murder, the killing must be the result of a deliberate and voluntary act, that is to say, it was not done by accident. Now, Mr Foreman and your members, where death results by an accident, it is no offence."
He again said at page 169:
"The prosecution must also prove to you that the accused killed Mr Wright by a deliberate act, in other words, it was not accidental, it was intended … So the prosecution must prove to you that the act was not involuntary, in other words that it was deliberately done."
No application was made to the judge to leave to the jury the possibility that they might bring in a verdict of manslaughter, on the basis of causing death by an unlawful and dangerous act, nor did the judge advert to that possibility at any stage in his summing-up.
"Now, Mr Foreman and your members, this is a case, or this is a trial where the case of the accused rests wholly on the correctness of the identification of him which the defence questions and alleges to be mistaken. Remember the suggestion that was made to Inspector Bailey, the only eyewitness in the case that he was honestly mistaken. I must warn you of the special need for caution before you can convict the accused on reliance of the evidence of identification and that is because an honest witness can make a mistaken identification.
Mr Foreman and your members, it might be your experience that you may know somebody very well and you saw somebody and you called to them thinking it's the person who you know very well and it turns out to be somebody else. So, you must remember Mr Foreman and your members, that a most convincing witness can be honestly mistaken so you therefore look at the circumstances in which the witness purports to identify the accused. How long did he have to observe the person whom he say was the accused? How far away was he from the accused when he purports to identify him? What was the nature of the lighting? Was there anything that would interfere with that observation? Was there anything on the accused man's head? Anything on the accused man's face which would have made identification difficult or not possible? How long was it between the original observation and the identification to the police? Was there any marked difference between the description given by the witness to the police and the appearance of the defendant? And, you should also look at any specific weakness which may exist in the evidence which the prosecution seeks to bring before you as evidence of identification. And are those – and I will go straight, Mr Foreman and your members, to Inspector Donovan Bailey. Inspector Bailey tells us that this incident took place a little after – 10.30 in the morning, in February, and he says that the light in the morning, and I would like to use his words 'was clear.'
Remember he tells us that when he heard the voice behind him, saying, "Big man, give me what you have," he spun around and he saw the accused man pointing a firearm at him. He says, the accused man was about two arm's length from him and he said he kept staring at the person.
Now, Mr Foreman and your members, this is the witness who up the thirteenth of February, 1999, had in excess of 28 years service as a policeman or so he said. He said that he kept staring at the accused man for a while and it was, and that the accused man said, "Pussy hole, lift up your shirt." He said he hesitated and instead of going towards his shirt he said he made a slight movement to the left.
Now, Mr Foreman and your members, you remember in cross-examination yesterday that the Inspector was asked to use the clock and to indicate by the clock exactly what took place in relation to time, but Mr Foreman and your members, that is essentially a matter for you, but you will think that the witness could repeat exactly what is alleged to have taken place that morning in regards to time but when it comes to time, what did he say? He said the incident took place and lasted for about two minutes and he was asked a direct question as to how long of that two minutes did he see the accused man's face? He said for about one and a half minutes. He was asked questions in cross-examination about what clothes the man was wearing, he said the whether the man was wearing trousers or shorts and his reply was that his attention was directed to the man from the gun up, not below that. So, Mr Foreman and your members that is a matter for you. What you will make of the evidence. Is he a witness who is honest mistaken? Because, it is going to be your responsibility to ask yourselves the question, 'Am I satisfied beyond a reasonable doubt that the identification of the accused man is a correct identification?'
Because very candidly Inspector Bailey agree that he was frightened and it would and extremely unusual if somebody goes shopping on a particular day is about to have a drink with a friend, hears a voice, turns around only to find that he is facing a firearm; not to be frightened, but he said he was frightened because the fact that he was frightened did not hamper his ability to honestly and accurately identify the accused? That is a matter for you."
Their Lordships will return later to consideration of the terms of this direction, but the burden of the complaint made on behalf of the appellant was that while it correctly set out the proper approach to the consideration of identification evidence, it fell short of giving the jury sufficient assistance in analysing the evidence and relating it to the principles expressed.
"Now, Sergeant Ebanks was asked by learned Counsel for the Prosecution about an Identification Parade. He said he didn't think it was necessary to hold one, as the accused had been pointed out by Sergeant Bailey shortly after the incident.
Now, Mr Foreman and your Members of the Jury, as I told you before, common sense is an important consideration when you are assessing evidence. Now, if somebody has pointed John Brown out as John Brown who did something was there any point in holding a parade, putting up a number of other persons if the person had pointed him out already, to point him out as the person?
The sergeant went on to tell you – he said that identification parades are held when the question of identification is not clear and that is the main reason. In this particular case, you would have seen that Inspector Bailey said that he had seen the accused man on that day in April dressed in the lime green trousers, white shirt and he pointed him out to the police officer. So, it is matter entirely for you."
"Ground 2, concerned as it was with a complaint of the learned trial judge's failure to leave the defence of accident to the jury, was founded, no doubt, on the premise that the appellant had discharged the firearm at inspector Bailey and not at the deceased.
This ground of complaint was misconceived and is without merit. It failed to take into account the doctrine of transferred malice as it applied to the facts and circumstances of the case. Following his directions on capital murder the learned trial judge then went right to the heart of the matter when at page 162 he said:
'So, Mr Foreman and your members, under our system of law, there is a doctrine that is called 'Transferred Malice' and what it means, is if I pointed a gun at individual A with intention to kill or cause serious bodily injury to individual A and B is standing nearby and the bullet from that intentional act causes B to die, it misses and hits B, then the law says that the intention to kill or to cause serious bodily injury to A is transferred to B. And, if you found that the act, the intentional act of firing a gun at A with the necessary intent causes B to be killed, then the person who did that is guilty of the offence of murder. And remember in this case we are dealing with the offence of capital murder'.
These directions are sufficient to dispose of ground 2."
The appellant's counsel criticised this passage heavily, on the basis that it had simply missed the point being made, which was not related to transferred malice.
"Inspector Bailey's testimony remained unshaken and the jury must have been convinced that they could safely regard that testimony as credible and reliable not only as to the events as they unfolded on the morning of the incident at the bar but, more importantly, as to his identification of the appellant."
a. the lack of clear or satisfactory identification, coupled with a number of irregularities in relation to the evidence presented to the jury, which should have caused the judge to withdraw the case from the jury or discharge them;
b. the inadequacy of the judge's directions to the jury in relation to the identification evidence;
c. failure to give the jury directions in relation to the possibility of bringing in a verdict of manslaughter;
d. the imposition of the mandatory death sentence. In the light of the Board's decision in Watson v The Queen  UKPC 34;  1 AC 472 it was not necessary for counsel to argue or the Board to consider this ground.
"an identification parade enables a suspect to put the reliability of an eye-witness's reliability to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair".
That observation was made in a case governed by Code D made under the Police and Criminal Evidence Act 1984 and there is no equivalent in Jamaica to that Code, but the principle contained in it may in appropriate cases give some guidance to Jamaican courts. Such a direction would have been preferable in the present case to the comment which the judge did make, but the harm done to the appellant's case may not have been great, since it is difficult to suppose that Bailey would have failed to identify the appellant again if a parade had been held.