UKPC 26
Privy Council Appeal No 0077 of 2009
Noel Campbell v The Queen (Jamaica)
From the Court of Appeal of Jamaica
JUDGMENT DELIVERED BY
3 November 2010
Heard on 21 July 2010
Julian B Knowles
(Instructed by Dorsey & Whitney (Europe) LLP
(Instructed by Charles Russell LLP)
Jurisdiction to grant special leave
"All appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute, or custom, may be brought before his Majesty or his Majesty in Council from or in respect of the determination, sentence, rule, or order of any court, judge, or judicial officer, and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by his Majesty to the said Judicial Committee of his Privy Council, and such appeals, causes, and matters shall be heard by the said Judicial Committee, and a report or recommendation thereon shall be made to his Majesty in Council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by his Majesty to the whole of his Privy Council or a committee thereof (the nature of such report or recommendation being always stated in open court)."
S.1 of the 1844 Act states further that "it shall be competent" for the Board:
"to provide for the admission of any appeal or appeals to her Majesty in Council from any judgments, sentences, decrees of orders of any court of justice within any British colony or possession abroad, although such court shall not be a court of errors or a court of appeal within such colony or possession Provided also, that any such order as aforesaid may be either general and extending to all appeals to be brought from any such court of justice as aforesaid, or special and extending only to any appeal to be brought in any particular case. . ."
Prior to the 1844 Act, the position appears to have been that, where there was an available domestic court of appeal or error, no appeal could be brought direct from a first instance court to the Board: see e.g. William Macpherson's The Practice of the Judicial Committee of the Privy Council (2nd ed. 1873), p.31.
"110 Appeals from Court of Appeal to Her Majesty in Council
(1) An appeal shall lie from decisions of the Court of Appeal of Appeal to Her Majesty in Council as of right in the following cases--
(a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings;
(b) final decisions in proceedings for dissolution or nullity of marriage;
(c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution; and
(d) such other cases as may be prescribed by Parliament.
(2) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases--
(a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; and
(b) such other cases as may be prescribed by Parliament.
(3) Nothing in this section shall affect any right of Her Majesty to grant special leave to appeal from decisions of the Court of Appeal to Her Majesty in Council in any civil or criminal matter.
(4) The provisions of this section shall be subject to the provisions of subsection (1) of section 44 of this Constitution.
(5) A decision of the Court of Appeal such as is referred to in this section means a decision of that Court on appeal from a court of Jamaica."
"4. The nature of the Crown's right to grant special leave to appeal was considered most recently by the Board in De Morgan v Director
-General of Social Welfare  AC 275. The Board held that the right to entertain appeals to the Privy Council is no longer a wholly prerogative power but is regulated by the Judicial Committee Acts 1833 ... and 1844 ... It is not a normal prerogative power of the Crown. Lord Browne-Wilkinson said, at p 285, that it is 'at best, a power which is in substance statutory, being regulated by the Judicial Committee Acts, with a vestigial and purely formal residue of the old prerogative powers'. Accordingly, express words are not required to limit or abolish the right to entertain such appeals. It is enough if the statute excluding the right of appeal to the Privy Council shows 'either expressly or by necessary intendment' that the power to entertain such appeals is to be abolished."
"11 Section 110(1) and (2) grant defined rights of appeal to the Board. Section 110(3) is expressed in negative terms. It does not grant any rights. Entitlement to an appeal to the Board on special leave granted by the Board does not derive from this provision, or any other provision, in the Constitution. Entitlement to such an appeal derives from the Judicial Committee Acts, continued in force on independence along with all other existing laws by section 4(1) of the Jamaica (Constitution) Order in Council 1962. On its face the evident purpose of section 110(3) is confined to ensuring that the rights of appeal to the Board conferred by section 110(1) and (2), which make no mention of the Board's right to grant special leave, are not to be taken impliedly to exclude or affect the latter right. Section 110(3) assumes the existence of such a right, although the draftsman has carefully catered for the possibility of change by using the phrase 'any right' rather than 'the right'."
"12. The first point to notice, however, is that section 110(3) does not confer any power on Her Majesty: it simply confirms that nothing in section 110 affects Her Majesty's power to grant special leave from a decision of the Court of Appeal on appeal from a court of Jamaica. In other words, the enactment of the specific provisions in section 110 is not intended to affect the previous power of the Board to grant special leave to appeal.
13. Mr Knox QC, who appeared for the Council, pointed out that section 110 of the Constitution is similar in all material respects, save one, to section 82 of the independence Constitution of Trinidad and Tobago which was enacted just a few months later. The difference is that section 82 of that constitution contains no equivalent of section 110(5) of the Constitution of Jamaica. If the intention of those framing the constitutions had been to limit appeals to the Privy Council to appeals to the Court of Appeal from particular kinds of tribunal in Jamaica, then one might well have expected to find an equivalent provision in the constitution of Trinidad and Tobago. The fact that no such provision is found suggests that section 110(5) was inserted in the Constitution of Jamaica for a different purpose.
14. That purpose can easily be identified. During the period when Jamaica was part of the West Indies Federation, the Cayman Islands and the Turks and Caicos Islands were dependencies of Jamaica. When Jamaica became independent in 1962, the Cayman Islands and the Turks and Caicos Islands became separate Crown colonies. But provision was made for appeals from their courts to continue to be made to the Court of Appeal of Jamaica. Since, however, the two territories were now separated from Jamaica, appeals to the Privy Council from decisions of the Court of Appeal affecting the Cayman Islands and the Turks and Caicos Islands were provided for by an Order in Council relating to those territories: the Cayman Islands and the Turks and Caicos Islands (Appeal to Privy Council) Order in Council 1962. The definition of "judgment" in section 2(1) of the Order was framed in such a way as to limit it to judgments of the Court of Appeal (of Jamaica) given in the exercise of any jurisdiction conferred on the court by any law for the time being in force in the Cayman Islands or the Turks and Caicos Islands. The purpose of section 110(5) of the Constitution of Jamaica was, accordingly, to confine the provisions for appeal to the Privy Council under the Constitution to appeals from decisions of the Court of Appeal when exercising its jurisdiction in relation to Jamaica, as opposed to its jurisdiction in relation to the other islands.
15. That being the purpose of the provision, section 110 must be interpreted accordingly. In particular, section 110(3) simply means that nothing in the section is intended to affect the power of the Board to grant special leave from decisions of the Court of Appeal when it is exercising its jurisdiction in relation to Jamaica. The Board is accordingly satisfied that the phrase "Court of Jamaica" in section 110(5) should be interpreted broadly, as applying to any body exercising jurisdiction in Jamaica from which an appeal lies to the Court of Appeal.
16. The respondent takes the provision much further and contends that section 110(3) is to be interpreted as, in effect, having a twin effect. Not only would it affirm the continued existence of the Board's power to grant special leave from decisions of the Court of Appeal in appeals from Jamaican courts, but it would also, by implication, remove the pre-existing power of the Board to grant special leave from decisions of the Court of Appeal in appeals from Jamaican tribunals and other bodies such as the Disciplinary Committee. Since the real purpose of section 110(5) is readily identifiable and has nothing to do with cutting down the scope of appeals in Jamaican matters, the Board must reject that interpretation. The effect of section 110(3) and (5) is to leave the Board with power to grant special leave from a decision of the Court of Appeal, exercising its jurisdiction in relation to Jamaica, in any case where it is appropriate.
17. Therefore the Board had power to grant the Council special leave to appeal in this case. It now turns to the substance of the appeal."
"14. The Board has anxiously considered whether, despite the language of these instruments dating back to 1962, there remains in the Board a power to grant special leave in a deserving case even though there is no possibility of appeal to the Court of Appeal under the domestic appellate regime and thus no decision of the Court of Appeal against which a petitioner can seek special leave to appeal. But St Kitts, as just noted, is a sovereign state. While both the 1967 Constitution (section 103) and the 1983 Order (Schedule 2, paragraph 2) afford a qualified measure of protection to existing laws, it is to the 1983 Constitution that reference must now primarily be made to ascertain the rights afforded to those aggrieved by decisions of the High Court or the Court of Appeal. The Privy Council is the final court in the St Kitts hierarchy of courts (Ibralebbe v The Queen  AC 900, 921-922; Electrotec Services Ltd v Issa Nicholas (Grenada) Ltd  1 WLR 202, 204). It is plainly open to the state to regulate access from one tier of its courts to another. It is not surprising that a state should require appellate remedies before its local courts to be exhausted before a litigant seeks access to the Board; and not very surprising that a state should preclude an appeal to the Board from a High Court decision where it has itself precluded an appeal to the Court of Appeal. The Board is constrained to conclude that that is what St Kitts has done."
Whether special leave should be granted
Substantive issues: (i) identification
"Now, the main issue in this case, I would think, is one of identification because Mr Anglin is telling you that he saw the accused man come in this bar and in fact he himself, Anglin, was fired upon by the accused. But the accused man is saying he was not there. So this is a case where the case against the accused depends wholly and substantially on the correctness of identification of the accused and which the accused man himself says, 'you are mistaken'.
I must warn you of the special need for caution before conviction in reliance on the correctness of the identification, for it is quite possible for an honest witness to make a mistaken identification. A mistaken witness can be a convincing one and even a convincing witness can also be mistaken.
You will have to examine carefully the circumstances in which the identification was made. You will have to look and see if you find any weaknesses in it and also whether these weaknesses were induced by deceit.
Now, it is common knowledge that this island is inhabited by two and a half million people, therefore there is this rich mixture of all the races in this population. There is always therefore, the possibility that one person may bear a marked similarity or resemblance to another in any given geographical area. There is the further possibility than an honest and prudent person may make a mistake in visually identifying another. A mistake is no less a mistake even if it is made honestly. It is also possible that a perfectly honest witness who makes a positive identification might be mistaken and not be aware of his mistake.
So in order to determine the quality and cogency of the identification, you must examine carefully the circumstances in which the identification was made. You will look at the opportunity the witness might have had of viewing the accused. You will ask yourselves whether the accused was known to Mr Anglin before the date of the commission of the crime and for what period."
In this passage, the judge focused mainly on mistake, but touched on credibility with his reference to deceit. Later, he made that issue more explicit:
"Now, he was cross-examined and he says that Well, it was suggested to him that he was telling lies. He said no he is not telling any lies.
He doesn't know that the accused had a tailor shop and he says he does not know of the rumour that the accused had gotten Nicola pregnant, and he didn't vow to get rid of the accused. So you might be asking yourselves this question: Why this bit of cross-examination? But the defence has raised this to say that the reason why the accused man, Mr Anglin, is saying it is the accused he saw in the bar is because there was some bad blood between them, malice, because the accused is fooling around his granddaughter, got her pregnant, and therefore he wants to pin this murder on him. "
The judge concluded his summing up as follows:
"Now, Mr Foreman and members of the jury, you have to determine whether Mr Anglin is a reliable witness; whether his credibility has been shaken; whether you can believe what Mr Anglin was saying, because he was the man who was on the scene. In fact he got shot during that time too. The accused said he is making a mistake. You will have to ask yourselves this question then: Was Mr Anglin making a mistake when he said the accused man was the person who shot him and who was shooting that morning? As a matter of fact the accused himself agrees that they knew each other well. There is no bad blood between them. All these are matters for you. You will have to determine whether the identification was correct, whether you are satisfied so that you feel sure that Mr Anglin is making no mistake when he said it was the accused he saw in that bar, and who had the gun and who turned the gun on him.
If you feel so satisfied that you feel sure that Mr Anglin is speaking the truth that he saw the accused there and that the accused was the man who had gone there, then you may convict him of this charge of murder."
Counsel for the prosecution then said:
" aside from this accused man has been saying that it is a deliberate attempt to implicate him with this offence, it is not only that, but that it is also a mistake".
Counsel's concern related to the issue of mistake rather than credibility. The judge's response, as recorded in the transcript, cannot have assisted the jury on either subject:
"Just that I think the jury must have understood that because he is saying because of this evidence of this pregnancy As Crown in her address is saying, it is a red herring. So you consider all the evidence and as I told you, you are at liberty to reject whatever evidence you want to reject and accept whatever you want to accept, as you are the judges of the facts."
"had an argument and he told her that she should tell her son, that is the accused, to leave his granddaughter alone, this is in April 1999, but he didn't say which granddaughter.
She says she don't mix up in any argument about Mr Anglin's granddaughter, that is a young people's thing, and she doesn't know that Mr Anglin's granddaughter got pregnant. You will remember the accused man said this accused had a fuss between the family. She said she doesn't know of it."
In fact, Miss Campbell had also said in cross-examination by counsel for the prosecution, without amplifying this, that, in addition to the argument in April 1999, there was "more fuss" with Mr Anglin "about some baby business . like the girl was pregnant". However, she had gone on to accept that she had only heard "what people talk about pregnant business" and that she did not really know. The judge's condensed summary of Miss Campbell's evidence appears to the Board to have conveyed a broadly accurate picture of very unspecific evidence, and cannot on any view lend support to the suggestion that the summing up was unfair or the verdict unsafe.
"Now, he says the bar was lighted; it was clear that you could see anyone; it was broad daylight. So here again is one of the circumstances you look at when you are considering the opportunity that Mr Anglin would have to view the accused. He says it was light morning.
He says he went inside the bar and leaned on the counter and he told you that there were some persons there . He says Brem-Brem was inside and Mr Man along with another man named Corey. Now, he says the accused man is called Brem-Brem. He say he knows him from the same district where he came from. He has known him for over twelve years. Again you consider that. You take that into account when you are considering the question of identification. He has known him for over twelve years, in broad daylight, and he lives in the same district. He says he lives with his mother, Miss Campbell, and he says that they live about fifteen chains apart. He says he saw the accused's face and everything; that is why he knew who it was. So you bear that in mind, that he is seeing the face of this person, the accused man who he has know for over twelve years, in broad daylight. .."
Later, the judge also said:
"If it is broad daylight and the person who did the act was somebody he had known for over twelve years and only a foot from him, would there be any difficulty in identifying that person?"
In the Board's view, in so far as the judge in these passages was identifying features which pointed towards the reliability of the identification, he did not go beyond the legitimate. Mr Anglin had been in the Coral Bar for half an hour when the shooting occurred, he said that he had seen the appellant repeatedly at different points and that, when he turned round and was shot, the appellant - his assailant - was very close ("a yard or two yards") from him, and he was able to see all of him, "head and down to foot, face, everything". It is not easy on the facts of this case to identify features throwing real doubt on the clarity of Mr Anglin's identification of the appellant in the Coral Bar at the critical time, in a context where the appellants' case was that he was nowhere near the bar that morning.
(ii) Absence of good character direction
"Q. Did you know his name as Noel Campbell?
A. I know the name Brem-Brem.
Q. But you didn't know the name Noel Campbell?
There the questioning stopped. These exchanges appears to the Board a very thin basis for thinking that the police knew anything adverse to the defence, and it is far from clear to what they were directed. With hindsight, in the absence of any relevant information adverse to the appellant's character from the prosecution side, it does not appear that Det Insp Campbell can have had any such information. If the questioning was intended to elicit good character, it also appears to the Board to have been an incompetent method of seeking to do this.
"Much may turn on the nature of and issues in a case, and on the other available evidence. The ends of justice are not on the whole well served by the laying down of hard, inflexible rules from which no departure may ever be tolerated".
"The appellant relies heavily on the series of propositions set out in paragraph 33 of the Board's judgment in Teeluck v The State of Trinidad and Tobago  1 WLR 2421 and certainly it is right to say, as paragraph 33(iv) of Teeluck's case does, that 'where credibility is in issue, a good character direction is always relevant'. But the trilogy of cases examined above suggests that the statement in paragraph 33(ii) of Teeluck's case, 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,' needs to be applied with some caution. In Teeluck's case itself, of course, the appellant's credibility was said to be 'a crucial issue' to the extent that the Board was unable to conclude 'that the verdict of any reasonable jury would inevitably have been the same if [the direction] had been given' (paragraph 40). So too in Jagdeo Singh's case  1 WLR 146. But the Board reached a different conclusion in Balson's case  UKPC 6 and in Brown's case  1 AC 1 and their Lordships have no doubt that the Court of Appeal were right to have done so in the present case too. 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'." (para 17)
A similar caution appears in Simmons v. The Queen  UKPC 19 (a murder case).