Ebanks v. The Queen (Jamaica)  UKPC 6 (16 February 2006)
Privy Council Appeal No 4 of 2005
David Ebanks 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 16th February 2006
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Carswell]
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2. – (1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say –
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(b) the murder of any person for any reason directly attributable to –
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings;
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(2) If, in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph (e) of that subsection), two or more persons are guilty of that murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used violence on that person in the course or furtherance of an attack on that person; but the murder shall not be capital murder in the case of any other of the persons guilty of it."
"So a very vital issue which arises in this case as had been pointed out by both counsel for the prosecution and the defence, is one of identification. So, this is the issue which I now come to at this point, and it is what is termed identification by the witness Isaiah Russell, who is saying to you that he knew this accused man for some time before, and so on the night in question he was able to recognise this person as the accused man.
Now, this is what the law says Mr Foreman and members of the jury, where the prosecution's case rests wholly or substantially on the evidence of someone who says that he recognised the assailant, then I have to warn you that you must be careful how you assess that evidence because it is possible that a person who says he knows so and so, one who claims that he recognises someone else, as a perfectly honest witness can make a mistake and a mistake is no less a mistake because the person is an honest person.
So I must warn you that it is dangerous to convict persons on this evidence unless you are satisfied that the person who comes along and claim that he has seen this accused man had the kind of opportunity to make the recognition and to recall the circumstances of this recognition, and you the jury can be quite sure that the person is not making any mistake at all. You must be satisfied that it is a true and correct recognition, so we will to take into consideration a number of things."
He went on to discuss the factors which may affect the reliability of an identification, the extent of the witness's acquaintance with the suspect, the lighting conditions, his distance from him and other matters bearing on his opportunity to see and identify the suspect. Again, no exception was taken to these directions.
" ... I say this, it is a recognition case, as the witness Isaiah Russell says that he knew the accused man before the date of this incident. It could be said that there was no need for an identification parade, but there was one and the accused man was pointed out by the witness Isaiah Russell."
He went on to direct the jury that they must consider all the circumstances to see that there was no unfairness and that the identification was obtained without prompting.
"Of course, Mr Foreman and members of the jury, another issue came by way of comment by the defence; that is whether or not this accused man was exposed to the public before the parade was held. But a comment I make here, Mr Foreman and members of the jury, if you were to say that they knew each other, or rather, Isaiah Russell knew this accused man, years before this incident happened, and you were to believe that he knew him, the question is, what would be the need for an identification parade? Or would there be a problem if he was so exposed before the parade?
If you were to find that he knew the accused man before the 4th of February, 1998, would it matter that he was exposed before the parade was held? A matter for you. But as I have said, a parade was held and since the parade was held, you as judges of the facts will have to determine whether or not this parade was fairly held."
He then examined in some detail the evidence relating to the holding of the parade, and emphasised to the jury that they had to determine whether there was any unfairness about its conduct. He followed that by rehearsing the evidence relating to the suggestion that the appellant had been exposed to Isaiah before the identification parade. He concluded consideration of this topic by reminding the jury that they must decide whether it was fairly or unfairly held, having repeated this several times as he proceeded through the evidence and pointed out to them (page 237(b)) that if it was unfairly held it would be unsafe to convict the accused.
"The truth of this issue could have been tested by an identification parade. If Claudette had failed to pick out the accused on the parade, her assertion that the accused were known to her would have been shown to be false. By not holding identification parades, the police had denied the accused an opportunity to demonstrate conclusively that she was not telling the truth. On the other hand, if she had picked them out, the prosecution case would have been strengthened, although the judge would have had to direct the jury that the evidence went only to support her claim that she knew them and did not in any way confirm her identification of the gunmen."
The function of the parade would accordingly have been, not the normal one of testing the accuracy of the witness's recollection of the person identified, but to test the honesty of her assertion that she knew the accused. The same opinion was expressed by the Board in Aurelio Pop v R  UKPC 40, (2003) 62 WIR 18, a similar case of disputed identification, where Lord Rodger of Earlsferry referred (para 9 of the judgment) to "the potential advantage of an inconclusive parade to a defendant such as the appellant."
" … it ignores the possibility of a change of mind and/or a failure to identify the appellant at the identification parade, of which possibility the appellant was, in the end, deprived."
"It becomes capital murder if the person killed, as alleged in this case, was a witness in a pending criminal trial."
At pages 246-7 the judge returned to the point, in a passage which has to be considered in full in order to set the direction in its context:
"The indictment charges this accused man with Capital Murder, and one of the things the prosecution would have to prove so that you feel sure, is that Joel Russell was a witness in a pending criminal trial at the time when he was killed. So you have the evidence before you of Detective Sergeant Hamilton who told you about the case that was pending in the Gun Court and in which the deceased man was a witness. So the prosecution is saying there is evidence before you, and you must now decide whether you accept the evidence of Detective Sergeant Hamilton. The prosecution is saying that on the night of this incident, the accused man who was identified by the witness, Isaiah Russell, came up to the accused man who was in a van at the time, and said to him, 'Yuh nah stop go a court pon mi cousin?' That is what the prosecution is saying, that these words were spoken by the accused man. So, it is a matter for you whether you believe Isaiah Russell that he in fact recognise that this was the accused man who he saw that night, bearing in mind my directions that I gave you relating to the question of identifying and being able to recognise this person who he said he knew for some seven years before the 4th of February 1998. So, the prosecution is saying that there is evidence coming from the accused man himself, making reference to the case that the deceased man was a witness in at the Gun Court. Because it is being said that the accused man said, 'Yuh nah stop go a court pon mi cousin?' and then a shot was heard and the deceased jumped out, ran off into the yard and several more shots were heard. So, the prosecution is saying there is evidence to this effect."
At page 261 the judge said:
"There is also the requirement on the shoulders of the prosecution to prove that the deceased man was a witness in the pending criminal trial … "
Finally, at the conclusion of his summing-up the judge repeated (Record, p 280):
"I have explained to you what capital murder is and why it is capital murder – this trial. So it is open to you, Mr Foreman and members of the jury, do you believe that that accused man, by his own act, used violence in the course or furtherance of an attack upon the deceased man and that the person killed was a witness in a pending criminal trial?
It is open to you, if you are not satisfied to the extent where you feel sure that the prosecution has discharged its burden then, as I say, it is open to you to find the accused man guilty as charged. But, if you find that it was the accused man who killed the deceased and then you are not sure that the deceased was a witness in a pending criminal trial, then it would be open to you to convict him of the lesser offence of non-capital murder."
Their Lordships emphasise that when directing a jury on the elements of capital murder it is imperative for a trial judge to ensure that they are apprised of all the elements which require to be proved. It is regrettable that the judge did not do so expressly in this case. Their Lordships strongly recommend that judges should be meticulous about directing juries in the words of the statutory provision, with any necessary supplemental explanation and consequent application of the test to the facts which the jury might find to be established.