Bernard v R
| Jurisdiction | UK Non-devolved |
| Judge | Lowry, Lord. |
| Judgment Date | 26 April 1994 |
| Court | Privy Council |
| Date | 26 April 1994 |
| Docket Number | Privy Council Appeal No. 24 of 1992 |
Privy Council
Lord Lowry
Lord Bridge
Lord Slynn of Hadley
Lord Woolf
Lord Lloyd
Privy Council Appeal No. 24 of 1992
Criminal practice and procedure - Directions to jury — Uncorroborated identification — Whether the defects in the summing up of the trial judge were cumulatively sufficient to warrant their Lordships interfering with the conviction — Failure to apply the Turnbull and Whylie doctrine — Direction on good character infringed an important principle that the words of such a direction must not give with one breath and take away with another — Shortcoming as to the treatment of the alibi defence — Conviction should be quashed — Appeal allowed.
This is an appeal by Anthony Bernard (“the appellant”) from the dismissal by the Court of Appeal of Jamaica (Carey, White and Ross JJ.A.) of the appellant's application for leave to appeal against his conviction of murder in the Home Circuit Court at Kingston on 11th March 1983 before Morgan J. sitting with a jury. The application was heard on 13th and 14th February 1985 and dismissed at the conclusion of the hearing and the reasons of the Court of Appeal for dismissing the application were given in a judgment delivered by Carey J.A. on 22nd February 1985. The appellant was granted special leave to appeal as a poor person on 19th December 1991 and the appeal came on for hearing before this Board on 2nd December 1993.
According to the prosecution case the appellant was one of three men who on 6th December 1981 about midnight invaded the house of Nelson Webster and his wife, Esmie Webster, at Glendevon in the parish of St. James and shot the husband dead and wounded Mrs. Webster. The prosecution case depended on the uncorroborated identification evidence of Mrs. Webster, who picked out the appellant at an identification parade held on 20th January 1982.
At the trial Mrs. Webster, who did not know the appellant, described how she had returned home with the deceased from their bar in Glendevon a little after 11.30 p.m. As she was locking up she saw three men armed with guns on the verandah. She rushed back into the house. Two of the men came into the bedroom. They confronted the deceased and asked him for money. Mrs. Webster described one of these men as tall and clear, meaning of fair complexion, and the other as short and dark. The “tall and clear” man, she said, was the appellant. According to this witness, the two men made the deceased lie down on the bed; the deceased then gave them a bag containing the night's takings from the bar, which he had brought home. The men then left the bedroom, but after a short time they came back. They made Mrs. Webster take off her chain and watch and made her lie on the bed face down. The appellant then shot the deceased and the other man shot her but only wounded her. The men ran outside and after a while she raised the alarm. Mrs. Webster said that at all times the electric lights on the verandah and in the house were lit. She came within touching distance of the appellant and was able to see him clearly. Neither of the men was masked. She described their clothing. The whole incident lasted for about 30 minutes and she was able to see the appellant for the whole of that time.
The appellant gave evidence at the trial and his main defence was an alibi. He said that from 7.00 p.m. that night until 1.00 a.m. he was playing dominoes with other men at his shop in Glendevon, where he lived, and in support of his alibi he called as a witness a neighbour, Pansy Dunn, who gave evidence that she was scoring at the domino game and, in agreement with the appellant's evidence, deposed that a group of people coming from church told them about 12.00 during the domino game that somebody had been killed down the road. This witness, who was extensively cross-examined, and the appellant further gave evidence that at the conclusion of the game of dominoes they went with one of the players, called Scarlett, to the appellant's girlfriend's house, where Scarlett bought and paid for a packet of cigarettes (the shop's supplies having run out). Scarlett was brought into court and identified by Miss Dunn but neither he nor any of the other players or alleged players whom the appellant, named was called as a witness. Clearly the jury, in convicting the appellant, must have rejected his alibi.
Another witness for the defence was Detective Senior Superintendent Wray, a Government ballistics expert, who gave evidence that the two bullets which respectively killed the deceased and wounded Mrs. Webster were both fired from a 38 Special Amedeo Rossi revolver serial number D43S918. The ballistic evidence revealed that this revolver had been used in a number of other armed robberies and murders, including the robbery and murder of a man called Allan Russell in the early hours of 7th December 1981, very soon after the murder of the deceased. The revolver had been recovered, with a number of other weapons, from the bodies of two wanted men, Patrick Hamilton and “Shorty” Keith Harrison, who were shot and killed by the police on 19th or 20th January 1982. The appellant's counsel submitted that these two men were likely to have been the men responsible for the death of the deceased. In reality this evidence merely showed that there was a link between the murders of the deceased and other crimes, including the murder which had been committed almost immediately after the deceased's murder, but it did not serve to exculpate the appellant or to inculpate him any further than Mrs. Webster's evidence inculpated him already. But what the evidence of Senior Superintendent Wray may have done was to cast doubt on Mrs. Webster's description of the incident (and thereby on her reliability as an observer) by tending to show that the two bullets which respectively wounded her and killed her husband had been fired from the same gun and presumably by the same person. Their Lordships say “tending to show” because there was no direct evidence that the bullet which (by implication from Superintendent Wray's evidence) related to Mrs. Webster was the actual bullet which wounded her. Indeed, the whole of this witness's evidence, save that the test-fired bullets and the bullets which were handed to Superintendent Wray came from the same gun, was hearsay and, except by rather vague implication, did not indicate whether the different bullets had been extracted from the bodies of the persons named as victims. Although the trial judge had said, “these bullets have to be identified”, Superintendent Wray's evidence, both hearsay and at first hand, was admitted without objection and went unchallenged by the prosecution. It is interesting to reflect that the most natural inference from Superintendent Wray's evidence is that on each of three occasions, namely on 21st November 1981 (when the Summervilles were shot), on 6th December 1981 (when the deceased was killed) and in the very early hours of 7th December 1981 (when the Russells were shot), the same revolver may have been used, by one gunman on each occasion, to shoot two victims. And that gun was still being used by either Patrick Hamilton or Keith Harrison on 19th or 20th January 1982, when those “wanted men” were shot dead by the police and the appellant was already in custody.
Detective Corporal Calbert Bowen saw Dr. Yalla, who performed the post mortem on the deceased, remove the bullet from the deceased's body. He then received the bullet and gave it to Detective Corporal Shand, who was in charge of the case but who died before the trial. Corporal Bowen later resumed possession of the bullet and gave it to Superintendent Wray. Dr. Yalla's deposition was admitted, upon proof in compliance with the law of Jamaica that he was absent from the island. None of the evidence, including Dr. Yalla's (except the evidence of Senior Superintendent Wray) made any reference to the second bullet which was said to have been fired from the Amedeo Rossi revolver on the occasion of the deceased's murder.
The grounds of appeal considered by the Court of Appeal were elaborate but did not recognisably include a reference to the principles enunciated in R. v. Turnbull [1977] Q.B. 224 and R. v. Oliver Whylie [1978] W.l.R. 430. Carey J.A., however, when giving the court's reasons for rejecting the application for leave to appeal, said this.–
“The main thrust of learned counsel's arguments challenged the learned trial judge's treatment of the evidence relating to the crucial issue of identification. We were impressed by the commendable pragmatism, in approach of counsel to his task' He urged that the learned trial judge failed to afford the jury adequate assistance and guidance on the issue of identification, so that they could properly deliberate on the matter.”
Carey J.A. then referred to the general guidance given by the trial judge, when she said.–
“I must warn you that, as counsel for the Crown and counsel for the defence have told you, you must exercise caution when you are relying on the correctness of any identification because a witness can be mistaken and still be a very convincing witness, so you have to examine very closely the circumstances under which the identification came to be made by the...
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