14th Mar 2013
The appellant (T) appealed against a decision upholding his conviction for murder.
The prosecution case depended almost entirely on the eyewitness evidence of a man (G) who claimed to have been present when T fired two gunshots at the deceased. G testified that he ran to the house of a married couple (H and W) after the shooting. H and W gave statements to the police. While H corroborated G's account of his coming to their house, W gave a different account, stating that G had been with her and her family in their home when the shooting occurred. W's evidence was not adduced at the trial. Enquiries as to when her statement was disclosed to the defence and as to why, assuming that it had been, no use was made of it had not produced a satisfactory answer. At the start of the third day of the trial, Crown counsel told the judge in the presence of the jury that one of the jurors had indicated that she knew T and that he was more than a passing acquaintance. In the presence of the jury, the judge asked the juror whether in the circumstances she wished to withdraw. She said that she did, whereupon she was discharged.
T argued that (1) W's evidence was of such importance that its absence rendered the trial unfair; (2) the incident involving the juror represented a further miscarriage of justice; the questioning of the juror should have taken place in the absence of the other jurors; in any event, the judge should have made proper inquiry as to whether the juror had mentioned her knowledge of T to the remaining jurors and, if so, what she had said.
(Lord Kerr dissenting on the first issue) (1) The question was whether W's evidence, if given at the trial, might reasonably have affected the jury's decision to convict. The answer was no. The crucial issue of fact was whether G had been with the deceased when he was shot. Taking W's statement at its face value, G had been in her house all the time and had never left it. On the other hand, G's evidence was supported by H. Further, there were important indications within G's own evidence that he must have been present. For example, he gave evidence that the deceased was shot twice and that he was lying on the ground when he was shot for the second time; those were things that he could not have known if he had not witnessed the shooting (see paras 14, 17, 20 of judgment). (2) It was unfortunate that counsel for the Crown did not draw the judge's attention to the problem with the juror before the jury were brought into court. The discussion which ensued was directed to whether, because she knew T, the juror ought to be sitting on the jury. But it did not go beyond establishing that she knew him and that he was not just a passing acquaintance. Nothing was said which was prejudicial to T or might have affected the fairness of the trial. The more difficult question was whether the judge should have gone further and conducted an inquiry, in the absence of the jury, as to whether the juror had said anything about T to the other jurors and, if so, whether that was something which they should not have been told. It was not obvious that the judge was seriously at fault in not making further inquiry or that his failure to do so had led to a miscarriage of justice. There was no hint in what the judge was told by the prosecutor, or by the juror herself, that the juror had told the other jurors that she knew T. Further, the judge had directed the jury to decide the case solely on the evidence and not to be influenced by anything said by one juror about that juror's prior knowledge of T (paras 22-25). (3) (Per Lord Kerr) The question was whether the jury might reasonably have declined to convict if they had been made aware of W's evidence. In R. v Pendleton (Donald)  UKHL 66,  1 W.L.R. 72, Lord Bingham had deprecated speculative assessment by the court of the degree to which new evidence might have affected the minds of the jurors. It was the face value of W's statement which had to be taken into account in assessing its possible impact on the safety of the conviction. The plain and unalterable fact was that, taken at face value, her statement suggested that G could not have been present at the scene of the killing when it took place. If the jury had been aware of that, it was inescapable that they might reasonably have declined to convict, Pendleton considered (paras 44, 46-47, 51).
The appellant's conviction for murder was not rendered unsafe by fresh evidence in the form of a statement by a witness which cast doubt on the assertion of the one eyewitness relied on by the prosecution that he had been present at the scene of the murder.