UKPC 36
Privy Council Appeal No 0104 of 2010 and No 0072 of 2011
(1) Anneth Livingston (2) Ramone Drysdale (Appellants) v The Queen (Respondent)
From the Court of Appeal of Jamaica
JUDGMENT DELIVERED BY
22 OCTOBER 2012
Heard on 25 April 2012
(Instructed by Reed Smith LLP)
|Respondent||Respondent||James Dingemans QC
|James Dingemans QC
|James Dingemans QC
|(Instructed by Charles Russell LLP)|
John Perry QC
(Instructed by Dorsey & Whitney (Europe) LLP)
James Dingemans QC
(Instructed by Charles Russell LLP)
The present appeal
a. Is it permissible for a witness at trial of three accused for murder to give evidence of the conduct and identification of a fourth accused who was not before the court?
b. Is it permissible for another witness at trial to testify about the appellant's previous association with the fourth accused who is not before the court and was only identified at committal proceedings?
c. If the answer to (a) and (b) is yes, would failure to give the jury a Turnbull direction on identification for both (a) and (b) cause a grave miscarriage of justice?
Would leading evidence at trial which was in the possession of the prosecution showing the appellant's previous association with an accused who is not before the court and who was only identified at committal proceedings without disclosing that evidence to the defence cause a grave miscarriage of justice?
3. Good Character
Where an accused gives evidence of good character and calls a witness in support would a failure to give the jury appropriate directions on the trustworthiness and propensity of the accused amount to a grave miscarriage of justice?
1. That the summing-up, both in its tone and content, is unbalanced and involves comments which have denied the appellant the fair trial to which she was constitutionally entitled.
2. The Court of Appeal's contention that proper inferences can be drawn leading to proof of her guilt is not sustainable given the legal difficulties with each piece of evidence from which the inferences can be drawn.
The directions as to identification
"Defence counsel says, if Mrs. Richards saw Williams at Half Way Tree, how is it she never saw him at the identification parade, but the Inspector told you that the identification parade was in respect of a murder suspect. She never said she saw Williams on the day of the murder. That's not her evidence, you know. And the identification parade, in respect of Williams, is in respect of the murder of Mrs Playfair, so, what you make of that? Mrs Richards only saw one man and she had already identified that man that she said was the accused, Drysdale, so when she goes to court at Half Way Tree and she sees Williams, she says to herself, but I remember him and she not only say it to herself, she said it to Crown counsel. She said it to another attorney who is there, but Madam Foreman and members of the jury, you know we are Jamaicans, you know how things go when people don't want to hear you they don't hear you when you are telling them anything, so it's a matter for you. Because she says she told them, nobody pays her any mind. And she says to you, I saw him come by to Mrs. Livingston the week before the boss was murdered and she tells several people."
At the conclusion of her summing-up, the judge was invited by the Crown to give a warning in respect of Mrs Richards' identification of Williams, but declined to do so.
The directions as to good character
"Now, in deciding whether the prosecution has made you sure of the defendant's guilt you must give weight to good character. You have heard that she is a legal secretary, and that she has attained the age of forty having committed any offence (sic). Given that weight, as with any person of good character, it supports her case that she is telling the truth."
"She is at the photocopier when Mrs Playfair screams the first scream - she is an employer who is good to her, she is the good friend of her employer, 17 years of loyal work and she does not look."
The second passage is concerned with the appellant's evidence that, when she saw the deceased bleeding, she went to the balcony to fetch Mrs Grier, as she was the only person who had a car. The judge told the jury:
"Mrs Playfair is seen in the office. She is holding her neck with one hand and she is saying to this loyal employee, this is the evidence of the loyal employee, she is making a gesture to open the door and what does this loyal employee do, she goes past her."
The third passage concerns an answer the appellant gave in cross-examination:
"You know you have to look at how she answered the questions you know. You heard her when crown counsel said hospital or doctor, she said hospital, or doctor, same difference. Remember these are the things you have to look at. These are the things you look at. I note them in my notebook; you remember them. These are the things, same difference, that is how she talks about her employer of 17 years, who she said helped her to buy a Datsun motorcar, that is her evidence, Madam Foreman and members of the jury, it is a matter for you."
The summing-up of the evidence
"She agreed that her employer assisted her to buy a Datsun motor car. You remember what the getaway car was. Her employer helped to buy her a motor car, that's the evidence, that's the evidence, Madam Foreman and members of the jury, that her employer helped her to buy a car and it was put to her, a Datsun motor car and she said yes."
It was no part of the Crown case that the taxi driven by Ricketts was the appellant's car, and there was no evidence to support that suggestion. At the conclusion of her directions, the judge was invited by the Crown to correct the suggestion that there was a connection between the taxi and the car owned by the appellant. The judge however declined to do so.