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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Wizzard v. The Queen (Jamaica) [2007] UKPC 21 (29 March 2007) URL: https://www.bailii.org/uk/cases/UKPC/2007/21.html Cite as: [2007] UKPC 21 |
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Wizzard v. The Queen (Jamaica) [2007] UKPC 21 (29 March 2007)
Privy Council Appeal No 106 of 2005
Barry Wizzard Appellant
v.
The Queen Respondent
FROM
THE COURT OF APPEAL OF
JAMAICA
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 29th March 2007
- - - - - - - - - - - - - - - - -
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Phillips of Worth Matravers
Lord Carswell
Lord Brown of Eaton-under-Heywood
- - - - - - - - - - - - - - - -
[Delivered by Lord Phillips of Worth Matravers]
The appeal against conviction
(i) The judge erred in admitting the caution statement;
(ii) The judge's direction in relation to the caution statement was defective;
(iii) The judge failed to give the jury an appropriate warning in relation to Mr Lundy's statement;
(iv) The judge failed to give the jury an adequate direction in relation to the elements of capital murder relied upon by the prosecution.
The statement under caution
"one warder dat live in Larriston deh pon di Avenue and dem bwoy deh fi dead because Larriston man dem always a fight against wi and when we go to prison dat warder always a give wi a fight at Gun Court. "
Nicholas suggested that all four, including the appellant, rush the warder and hold him.
Mr Lundy's statement
"About five feet six inches tall, of black complexion and of slim build. He has a round face, straight nose and has a little beard on the chin. He has bright eyes and a tooth is missing from the top row of his mouth"
The Voir Dire
"Yes, I find that the statement was given voluntarily and it is therefore admitted into evidence".
The challenge to the admission of the statement under caution
The direction to the jury in relation to the statement under caution
"If, for whatever reason, you are not sure whether the statement was made or was true, then you must disregard it. If, on the other hand, you are sure both that it was made and that it was true, you may rely on it even if it was made or may have been made as a result of oppression or other improper circumstances."
(i) The decision in Mushtaq does not apply on the facts of this case.
(ii) The decision in Mushtaq is not applicable in Jamaica.
(iii) The decision in Mushtaq should not be applied retroactively.
(iv) If necessary, this is a proper case for the application of the proviso to section 13 (1) of the Judicature (Appellate Jurisdiction) Act.
The first three submissions call for an analysis of the decision in Mushtaq.
R v Mushtaq
"If you are not sure, for whatever reason, that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true, you may rely on it even if it was, or may have been made as a result of oppression or other improper circumstances."
Thus he gave the same direction as that given by McIntosh J in the present case.
"36. The point of principle raised by the certified question and argued before the House is indeed of general importance. But I cannot help noticing at the outset that, since the appellant did not give evidence and the police officers denied all the suggestions of oppressive behaviour in conducting the interview that were put to them in cross-examination, it appears that there was actually no evidence of oppression before the jury. If that was indeed the position, there was no need for the judge to give any direction on what the jury should do if they found that there was, or might have been, oppression…Since, however, the question of law has been fully argued, the House should deal with it."
"47. In my view, therefore the logic of section 76(2) of PACE really requires that the jury should be directed that, if they consider the confession was, or may have been, obtained by oppression or in consequence of anything said or done which was likely to render it unreliable, they should disregard it. In giving effect to the policy of Parliament in this way, your Lordships are merely reverting to the approach laid down by the Court of Criminal Appeal (Lord Goddard CJ, Byrne and Parker JJ) in R v Bass [1953] 1 QB 680. Giving the judgment of the court, Byrne J quoted the well-known words of Lord Sumner in Ibrahim v The King [1914 AC] 599, 609-610:
'It has been established as a positive rule of English criminal law that no statement by an accused in admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.'
He then added, at p. 684:
'It is to be observed, as the court pointed out in R v Murray [1951] 1 KB 391, that while it is for the presiding judge to rule whether a statement is admissible, it is for the jury to determine the weight to be given to it if he admits it, and thus, when a statement has been admitted by the judge, he should direct the jury to apply to their consideration of it the principle as stated by Lord Sumner, and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.'
It seems clear that the court saw the direction to disregard the confession in such circumstances as part and parcel of the jury's exercise of attributing the appropriate weight to the confession: in circumstances where they found that it had not been voluntary, for reasons going back to the time of Lord Hale, they should give it no weight and should disregard it"
"53. In terms of section 6 (1) of the 1998 Act it is therefore unlawful for the judge and jury to act in a way which is incompatible with a defendant's right against self-incrimination as implied into article 6 (1). Here the judge directed the jury that, if they were sure that the appellant's confession was true, they might rely on it, 'even if it was, or may have been, made as a result of oppression or other improper circumstances'. This was a direction that, in reaching their verdict and so, for article 6 (1) purposes, determining the criminal charges against the appellant, the jury were entitled to take into account a confession which they considered was, or might have been, obtained by oppression or any other improper means in violation of his right against self-incrimination. Such a direction was an invitation to the jury to act in a way that was incompatible with the appellant's right against self-incrimination under article 6 (1). As such, the direction was itself incompatible with that right.
54. It follows, both on the basis of section 76 (2) when viewed without regard to the Convention and on the basis of the appellant's article 6 (1) Convention right against self-incrimination, that the judge misdirected the jury when he said that, if they were sure that the confession was true, they might rely on it, even if it was, or might have been made as a result of oppression or other improper circumstances"
"75. I therefore consider that the judge should direct the jury in more prescriptive terms than the Bass direction, to the effect that unless they are satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression, they must disregard it".
Was a Mushtaq direction required on the facts of the present case?
Does Mushtaq apply in Jamaica?
Should the decision in Mushtaq be applied retroactively?
The application of the proviso
"(1) The Court on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."
Had the misdirection been material, the basis upon which it might have been right to allow this appeal would have been that there had been a 'miscarriage of justice'. In the event, there has been no miscarriage of justice. It is thus a moot point as to whether one ever reaches the proviso. If one does, then the proviso clearly applies.
Mr Lundy's statement
(i) The judge should have given a Turnbull [1977] QB 224 warning in relation to Mr Lundy;
(ii) The judge should have pointed out to the jury that there had been no identification by Mr Lundy of the appellant;
(iii) The judge should have warned the jury that, because Mr Lundy had not been cross-examined, they should treat his evidence with caution.
"…what you have is a statement from Mr Lundy given to the police. Mr Lundy was not here, he could not be cross-examined. His evidence could not be tested. And what you have to do is to attach the amount of weight that you think ought to give the statement which you have heard, bearing in mind that it is not sworn evidence and it was not tested by cross-examination. You have to look at it, consider it, and attach such weight to it as you think you should."
It seems to their Lordships that this was an impeccable direction.
The elements of capital murder
"2. (1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say –(a) the murder of –
(i) a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;
(ii) a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;
(iii) a judicial officer acting in the execution of his duties; or
(iv) any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force, or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation."
…
(5) In this section –
"correctional officer" has the same meaning as in the Corrections Act.
"correctional officer"-
"(a) in relation to an adult correctional centre, means the Commissioner and any officer subordinate to him, other than such officers as may be prescribed, carrying out functions in, or in relation to, an adult correctional centre; and
(b) in relation to any other correctional institution, means the Commissioner and such other persons as may be prescribed as a correctional officer in relation to that institution."
"In this instance of capital murder the prosecution must prove to you that the deceased, Howard Bredwood, was killed by virtue of the fact that he was a correctional officer."
In her final charge to the jury the Judge said:
"If, as I said before, you are satisfied from the evidence that Mr. Howard Bredwood was killed because he was a correctional officer, then it would be open to you to convict this accused of capital murder. If, however, you find that the accused killed or took part in the killing but you are not sure whether Mr Bredwood was killed because he was a correctional officer, or because he was a man from the Larriston area, that always fighting against them, as was disclosed in the caution statement; if you are not sure about it, then it is open to you to convict the accused of the lesser offence of non-capital murder. So, those are the two verdicts you can give. Guilty of capital murder or in the circumstances that I have related guilty of murder or you can find that he is guilty of nothing at all. It depends entirely on what you make of the evidence and what you decide. So, please retire and consider your verdict."
The appeal against sentence
"(1) Every person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice."
The appellant was duly sentenced to death pursuant to this section upon his conviction.
"(1) Every person who is convicted of murder falling within –
(a) section (2) (1) (a) to (f)…shall be sentenced to death or to imprisonment for life;"