Smith v. The Queen (Jamaica)  UKPC 34 (23 June 2008)
Privy Council Appeal No 102 of 2006
Nyron Smith 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 23rd June 2008
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Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
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[Delivered by Lord Carswell]
"My name is Dennis Singh. I just have something to say. The thing is this, I don't want to go further with this, my life is being threatened. I went to the police, I reported it and nothing was done. I got a call from someone saying they are going to kill my wife, my mother and father and my kids and whosoever is close to me. My parents live in Olympic Gardens. I have a trucking business in Newport West where I operate trucking business all over the island."
He then added: "I am afraid of my life your honour."
The judge discharged the jury at the request of prosecuting counsel and adjourned the trial. Later that day Mr Singh made a statement to the police in which he recounted an incident which had occurred in the court building shortly before the trial commenced and which he found disturbing. It is apparent from the terms of the statement and the fact that prosecuting counsel had no notice that he would refuse to give evidence that this incident triggered his decision, on top of the threat which he said he had previously received.
"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 31J(1) provides for the admissibility of evidence to attack the credibility of the maker of the statement so admitted or to prove an previous inconsistent statement made by him. Section 31L permits the court to exclude evidence if in its opinion the prejudicial effect of that evidence outweighs the probative value.
"I am satisfied by the evidence given that the necessary conditions pursuant to section 31D have been satisfied, and accordingly I will allow the application."
" … I was cooking that night, Your Honour, the kitchen get a little hot so I decide to take a breath of fresh air … The rice run out so I decide to get a new fresh set. There was one plate with rice and meat, Your Honour. There was one plate left with rice and meat in it so I picked it up and while making my way across the road, before I hit the curb wall I felt someone bounce into me, I have to use my left hand to ease off the person so that the food didn't throw away. I go up on the curb wall and hand the food to a gentleman … I see a gentleman come up towards me, he identified himself as police, but he have on plain clothes, so I think it was a joke, Your Honour. He said someone tell him I stab Ram Puss … so I smile and said, 'No, I didn't stab nobody' … I didn't have a knife on me, Your Honour, and I know I didn't do it, Your Honour …"
1. Error in admitting the deposition of Dennis Singh.
2. Failure to exclude the identifications.
3. Unfair conduct of prosecuting counsel.
4. Failure to adduce evidence of good character.
5 and 6. Misdirections by the trial judge.
" … [T]heir Lordships are satisfied that the discretion of a judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is, however, a power that should be exercised with great restraint. The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition, for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence. If the courts are too ready to exclude the deposition of a deceased witness, it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused. It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration when considering how far they can safely rely on the evidence in the deposition. No doubt in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination: but no rules can usefully be laid down to control the detail to which a judge should descend in the individual case …
Provided these precautions are taken it is only in rare circumstances that it would be right to exercise the discretion to exclude the deposition. Those circumstances will arise when the judge is satisfied that it will be unsafe for the jury to rely upon the evidence in the deposition. It will be unwise to attempt to define or forecast in more particular terms the nature of such circumstances. This much however can be said, that neither the ability to cross-examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that it is identification evidence will of itself be sufficient to justify the exercise of the discretion.
It is the quality of the evidence in the deposition that is the crucial factor that should determine the exercise of the discretion. By way of example, if the deposition contains evidence of identification that is so weak that a judge in the absence of corroborative evidence would withdraw the case from the jury; then if there is no corroborative evidence - the judge should exercise his discretion to refuse to admit the deposition for it would be unsafe to allow the jury to convict upon it. But this is an extreme case and it is to be hoped that prosecutions will not generally be pursued upon such weak evidence. In a case in which the deposition contains identification evidence of reasonable quality then even if it is the only evidence it should be possible to protect the interests of the accused by clear directions in the summing up and the deposition should be admitted. It is only when the judge decides that such directions cannot ensure a fair trial that the discretion should be exercised to exclude the deposition."
It is only necessary to add that the trial judge discharged adequately in her summing-up the duty placed upon her to warn the jury of the lesser weight which could be placed on evidence not given viva voce and of any inconsistencies between that evidence and the remainder of the testimony.
"If an eyewitness of a criminal incident makes plain to the police that he cannot identify the culprit, it will very probably be futile to invite that witness to attend an identification parade. If an eyewitness may be able to identify clothing worn by the culprit, but not the culprit himself, it will probably be futile to mount an identification parade rather than simply inviting the witness to identify the clothing. If a case is one of pure recognition of someone well known to the eyewitness, it may again be futile to hold an identification parade."
In jurisdictions where such mandatory provisions do not apply, their Lordships consider that, apart from the exceptional type of case to which they have referred, it should be regarded as desirable practice to hold an identification parade where there has been an identification which is disputed by the suspect.