20th Dec 2011
The appellant (R) appealed against a decision of the Court of Appeal of Jamaica his conviction for murder.
The evidence of the sole witness to the murder (S) was that R had attacked the deceased with a meat chopper. S stated that he had known R for some 30 years and saw him regularly. R's counsel gave evidence subsequent to the trial that whilst he had been aware of R's good character, he had judged, based on the evidence that was adduced, that it was not necessary to raise it. The Court of Appeal held that even if a good character direction had been given, the jury would inevitably have convicted him.
R submitted that the trial judge had (1) failed to give an adequate direction on the evidence of identification; (2) prevented his counsel from challenging S's evidence and made unfairly prejudicial remarks during her summing up; (3) failed to direct the jury that he was of good character.
(1) The judge had given a classic identification direction. She had then pointed out to the jury that the identification involved recognition and had given an entirely sufficient further direction that even in such cases mistakes could be made, so that there was still a need for caution (see para.14 of judgment). (2) No material was produced to support R's suggestion that at some time in the past, in an unspecified trial, S had retracted the evidence he had previously given, and so the judge had been entitled to prevent R's counsel from cross-examining S as to his credibility. Further, there was no basis for any valid criticism of the judge with regard to another witness's evidence. She had stopped certain questioning as she could not see its relevance and R's counsel had chosen not to pursue the matter. In relation to the summing up, that had to be read as a whole and as such the case had been put fairly before the jury (paras 16-17, 19). (3) It was difficult to understand R's counsel's explanation of why he did not raise R's good character during the trial. It could have been advanced both in support of R's credibility and in a submission that he did not have a propensity to commit crimes. There was no good reason for the failure to put good character before the jury, and counsel should have done so. It was difficult to imagine that, if he had, the judge would not have given a good character direction. Therefore, although no criticism could properly be directed at the judge, such a direction should have been given. However, the Court of Appeal had been entitled to conclude that the jury would inevitably have convicted R even if a good character direction had been given. There was a strong case against R and the Board would have reached the same conclusion (paras 8, 10, 20).
A conviction for murder was safe where, although a good character direction should have been given, the jury would inevitably have convicted the appellant.