UKPC 24
Privy Council Appeal No 0081 of 2011
Donald Phipps (Appellant) v 1) The Director of Public Prosecutions 2) Attorney General of Jamaica (Respondents)
From the Court of Appeal of Jamaica
JUDGMENT DELIVERED BY
27 June 2012
Heard on 23 May 2012
Nicholas Rhodes QC
(Instructed by Simons Muirhead & Burton)
James Guthrie QC
(Instructed by Charles Russell LLP)
LORD CARNWATH :
The conflicting evidence
Grounds of appeal
i) The appellant did not receive a fair trial because of the overwhelming prejudice to his case arising from procedural irregularities in the course of the trial namely:
a) the jury was made aware that the appellant was remanded in custody and the co-accused was on bail, and
b) the behaviour of police in the arrest and detention of the defence witness Foster in the course of the appellant's trial and the manner of his presentation to the jury as a witness in the trial.
ii) The judge's directions to the jury on the issue of voice recognition were inadequate in the light of the evidence in the case.
iii) The judge's directions as to the evidence needed to prove the charge of murder were inadequate.
iv) The verdict of the jury could not be supported in the light of the evidence.
"In our view, in all the circumstances of this case, these remarks by the judge would have sufficed to focus the minds of the jury, as persons of ordinary courage and firmness, on the business at hand, that is, to consider the evidence carefully and to render a true verdict according to law. While it would obviously have been best if the remand status of the applicant had been dealt with as a matter of routine after the jury had withdrawn, we do not think that to the extent that there may have been occasional departures from this ideal during the course of the long trial, any prejudice to the applicant has been demonstrated to have resulted from any such lapse." (para 128)
"He said that when he came to court the previous day he came to court being brought by the police and the policeman was behind him holding him in his waist and that he has been taken from the lock up and brought up. Now, Mr. Foreman and your members, this bit of information about how he was brought into court ought not to affect in any way shape or form what you have to decide, and that is to assess the evidence of David Foster fairly and impartially. It should not be used against him in any way at all. (5/2063-4)"
Voice recognition direction
"Now, in order for the evidence of a witness to be accepted who said that he recognized an accused person by voice, to be cogent there must be evidence of the degree of familiarity the witness have had with the accused and his voice including the time the witnesses may have had to listen [to] the voice of the accused and the occasion when the recognition of the voice occurred must be such that such words used to make a recognition of that voice is safe to act on"(4/1884)
He reminded them that, of the three witnesses, only Clue claimed to be familiar with his telephone voice (4/1885). Later, he reminded them of his earlier directions, and of the need for "very special caution" before they could accept that the voice alleged to have been heard was in fact the voice of the accused (5/2046).
"… I omitted to indicate to you that sometimes people can be very convincing although they are mistaken when they say that they identify somebody by their voice on the telephone. And you are going to be very careful in your assessment of the evidence because an honest witness can also be a mistaken witness. The witness may honestly feel that the person they heard on the 'phone was John Brown, but in fact it turns out to be otherwise.
So you look on the evidence, the circumstances under which the identification of the voice was made. You look at the previous history of that person who heard the particular voice. The person who seeks to identify the person by voice, what opportunity that other person would have had to have heard the voice.
I told you that of the three person who said they heard the accused, only one had given evidence that he had spoken to and heard the accused on a telephone. So please remember that." (5/2097)
"He reminded them of all the relevant factors to be taken into account, including potential weaknesses in the evidence, and gave warnings appropriate to the circumstances of the case. At the end of the day, it was entirely a matter for the jury to decide what weight should be given to the various factors and it appears to us that in this regard they had the benefit of as much assistance as could reasonably be expected from the judge."
24. They made one criticism:
"While it is a fact that, as Mr Phipps submitted, the judge did not tell the jury that it is a notorious fact that mistakes have been made in voice recognition in the past, we think that this omission is more than outweighed in this case by the judge's repeated emphasis of the need for caution in assessing the evidence of voice identification."
Mr Guthrie QC, for the respondents, disputes the criticism. The reference to "notorious mistakes" in some of the cases reflects UK experience in the context of visual recognition. He suggests that that there is no equivalent evidence of mistakes in respect of voice identification. The Board has no material on which it could properly comment on the extent of such mistakes in the UK or Jamaica. On any view, however, it agrees with the Court of Appeal that this was not a material defect in the summing-up.