Barry Wizzard v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Phillips of Worth Matravers |
| Judgment Date | 29 March 2007 |
| Neutral Citation | [2007] UKPC 21 |
| Court | Privy Council |
| Docket Number | Appeal No 106 of 2005 |
| Date | 29 March 2007 |
[2007] UKPC 21
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Phillips of Worth Matravers
Lord Carswell
Lord Brown of Eaton-under-Heywood
Privy Council
[Delivered by Lord Phillips of Worth Matravers]
On 26 January 2000 in the Supreme Court, St Catherine's Circuit, Jamaica, before McKintosh J and a jury, Barry Wizzard, the appellant, was convicted of the capital murder of Mr Howard Bredwood contrary to section 2 (1) (a) of the Offences against the Person Act ('the Act'). He was sentenced to be hanged. He appealed against conviction and his appeal was dismissed by the Court of Appeal on 6 April 2001. He appeals against both conviction and sentence with special leave, granted on 4 July 2005.
The appeal against conviction
Section 2 of the Act provides that a murder is a capital murder where, inter alia, the victim is a 'correctional officer' and the murder is 'directly attributable to the nature of his occupation'. The appellant was charged with and found guilty of capital murder on the basis of these provisions.
The primary evidence against the appellant consisted of admissions alleged by the prosecution to have been made to the police in a statement under caution ('the statement under caution') that was corroborated by a statement of a Mr Lundy. Mr Cousins, the counsel acting for the appellant at his trial, objected to the admission of the statement under caution and a voir dire was held. The judge ruled that the statement was admissible and it was read to the jury. She directed the jury that they could rely upon the statement under caution provided that they were satisfied that it was true, even if they concluded that it might have been obtained by oppression.
Mr Julian Knowles has argued for the appellant that:
The statement under caution
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(i) The judge erred in admitting the caution statement;
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(ii) The judge's direction in relation to the caution statement was defective;
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(iii) The judge failed to give the jury an appropriate warning in relation to Mr Lundy's statement;
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(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 was written by Acting Superintendent Grant ('Inspector Grant') and signed by the appellant on 27 November 1997, the day of his arrest. The statement was recorded phonetically and was in patois. It was to the following effect.
On Monday 24 November 1997 the appellant met Nicholas Dawkins ('Nicholas'), Donovan Scott ('Blacka'), and Jason Durrant ('Outlaw') on Jones Avenue. Nicholas pointed out Mr Bredwood and said to the appellant of him:
"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.
All four walked over to Mr Bredwood and grabbed him. Outlaw took a big stick and hit Mr Bredwood on the head. The appellant took out a knife and stabbed Mr Bredwood in both hands. Then all four took him into the 'Race Horse Room, Pal Pal House, on Shit Lane'. There they sat him on the floor, tied his hands behind his back with wire and stuffed a rag in his mouth. They took turns to guard him until nightfall. When night came, Nicholas said that it was time to kill Mr Bredwood, Blacka and the appellant both stabbed him in the chest. Nicholas cut his throat. They wrapped his body in a sheet.
Nicholas and Blacka then left to find a taxi driver called 'Natty' to help dispose of the body. Natty arrived with a taxi, the body was lifted into the boot and Nicholas, Blacka, Outlaw and the appellant climbed into the car. Natty was told to drive to Larriston, because the plan was to dump the body there so that it would appear that the murder had been committed by a Larriston man. When they reached a particular spot on the road Nicholas told Natty to stop. They lifted the body out and dumped it in the road. Natty then drove them back to Jones Avenue.
Mr Lundy's statement
Mr Lundy went to Spanish Town Police Station on 1 December 1997 and volunteered a statement. He later vanished and police searches failed to disclose his whereabouts. His statement was to the following effect.
He lived on Jones Avenue and carried on business as a taxi driver. He was not called Natty but he lived next door to a man with that name. Residents of the area whom he knew included four whom he named as Nicholas, Outlaw, Blacka and Barry. He gave a description of these men. That of Barry was as follows:
"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"
On the night of 25 November 1997 some men banged on the door of his next door neighbour, who was called Natty, shouting for a driver. Then there was a banging on his own door. Barry and another man were outside. Barry said that he wanted Mr Lundy to take a brother who was sick to hospital. When they reached the car Nicholas and Outlaw climbed into the back. They drove to Shit Lane. The four men then collected a body from nearby premises and placed it in the boot of the car. Outlaw directed him to drive to Larriston. There the four men left the body in the road. He was then instructed to drive them back to Jones Avenue.
The following morning he saw blood in the boot of his car and wiped it clean. He did not report what had happened because he was in fear. On 27 November he told his wife what had happened and they decided that they would move from the area, after which he would report the matter to the police. They moved the following day and he went to the police station to make his statement at about 3 pm on 1 December.
Mr Lundy's statement did not tally entirely with the appellant's statement under caution, but it corroborated much of that statement. Furthermore the description that he gave of Barry matched the appearance of the appellant. Objection was taken, unsuccessfully, to the reading of Mr Lundy's statement at the trial and on appeal. That objection was not pursued before their Lordships.
The Voir Dire
Before the voir dire took place the following evidence was given by a Sergeant Walker without objection by Mr Cousins.
On the morning of 26 November [having regard to the other evidence this date must, in fact, have been the 25 November], acting on information received, Sergeant Walker and other police officers proceeded to Bonanza Drive, Larriston, where they found Mr Bredwood's body. On 27 November, acting on further information received, he went with other policemen to Spanish Town where he arrested the appellant, cautioned him and told him that he was investigating the murder of Mr Bredwood and believed that the appellant could assist. The appellant replied " Me wi tell you how it goh". The appellant confirmed that he wished to make a statement in writing. Sergeant Walker then escorted him to the police station in Spanish Town.
At the police station the appellant was cautioned by Inspector Grant and signed a statement recording that fact. He then signed a request to Inspector Grant to write his statement out for him. He then dictated a statement to Inspector Grant. This was read back to him, whereupon he signed it. No promises or threats were made to him nor violence used upon him.
At this point, Mr Cousins objected to the admission of the statement and the voir dire intervened.
Both Sergeant Walker and Inspector Grant gave evidence and were cross-examined. Mr Cousins put to them that they had forced the appellant to "give a statement" by beating him and that the statement that he had given was not read back to him. The officers denied this.
The appellant was then called to give evidence. He told a significantly different story to the account put to the police officers in cross-examination. He said that Inspector Grant had brought him a piece of paper to sign with writing on it and asked him to sign this. He had refused because he did not know what it was about. He had then been beaten about the head with a piece of board and knocked unconscious. When he recovered his senses, he was pouring blood from a head wound. He was then punched in the face and a tooth was knocked out. He was told that if he did not sign the document he would be killed. In these circumstances he put his signature to the document. It was not read to him.
The appellant was cross-examined and asked about some discrepancies between his evidence and what had been put to the police officers in cross-examination. In particular, he was asked about the allegation that the police had knocked out a tooth. At the start of his cross-examination he said that he was already missing two front teeth, but that the police had knocked out a third. At other stages of his evidence what he said as to the number of teeth that were missing before his arrest and the number knocked out by the police was neither clear nor consistent.
In submissions to the judge Mr Cousins contended that the appellant's evidence was corroborated by the fact that he had a scar on his head and was missing a tooth. He submitted that the statement under caution should not be admitted. The judge gave a very short ruling:
"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 submissions made by Mr Knowles to their Lordships echoed those made to the judge by Mr Cousins. He submitted that the appellant's evidence of his treatment by...
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Subject Index
.... . . . . . .153–154, 155Whitehouse vJordan [1981] 1WLR 246, HL . . . 96Wilson vWhite [2005] NZCA82 . . . . . . . . . . . . 238Wizzard vR [2007] UKPC21 . . . . . . . . . . .298, 301Wright vDoe d. Tatham(1837) 7 A& E 313 . . 331Ziderman v General Dental Council [1976] 1WLR 30,PC. . . . . . .......
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Table of Cases
.... . . . . . 52Waugh v British Railways Board [1979] 2 AllER 1169, HL . . . . . . . . . . . . . . . . . . . . . . . . . . .52Wizzard v R [2007] UKPC 21. . 340, 341, 342, 343368 E & PTABLE OF CASES ...
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Noticeboard
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