Berry v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lowry |
| Judgment Date | 15 June 1992 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No. 40 of 1990 |
| Date | 15 June 1992 |
Privy Council
Lord Keith of Kinkel; Lord Roskill; Lord Ackner; Lord Jauncey of tullichettle; Lord Lowry
Privy Council Appeal No. 40 of 1990
Criminal Evidence - Prosecution evidence — Disclosure to defense — Statements by criminal prosecution witness not disclosed to defense — Significant discrepancies between evidence in court and statements — Discrepancies not brought to attention of defense — Witness's evidence in court not foreshadowed at preliminary enquiry — Material irregularity — Criminal evidence — Character evidence — Relevance of credibility — Failure of trial judge to bring relevance to attention of the jury — Criminal Law — Jury — Return to court for help — Appeal allowed and case remitted for either an order of acquittal or an order of a new trial, that it was not inevitable that the jury would have convicted him had the defense been furnished in advance with the evidence.
This is an appeal by special leave of Her Majesty in Council granted on 24th July, 1990 from the judgement of the Court of Appeal of Jamaica given on 10th November, 1989 and dismissing the appellant's appeal against his conviction on 22nd March, 1988 in the Home Circuit Court, Kingston, Jamaica for the murder of Paulette Zaidie (“Paulette”) on 11th January, 1987.
Paulette died as a result of a head wound inflicted by a single bullet fired at point blank range (3” – 5”) from the appellant's Smith & Weston 44 revolver. Her body was found in the driver's seat of her own jeep, a left hand drive model. Another bullet fired from the same revolver had entered the outside of the driver's (that is, the left-hand) door of the jeep and passed through to the edge of the driver(s seat without striking Paulette. There was no independent witness to the shooting.
The prosecution case was that the appellant had fired deliberately at Paulette. It relied both on the circumstances of the shooting and on a confession alleged to have been made by telephone by the appellant to Paulette's husband, Jimmy Zaidie (“Zaidie”) immediately after the shooting, and also on threats previously made by the appellant to kill Paulette as alleged by the prosecution and as testified to in evidence by Zaidie and by Daphne Matadial (“Matadial”). Paulette's sister.
The appellant accepted as a fact he was holding the revolver when the fatal shot was discharged, but the case for the defence was that the revolver went off accidentally in the course of a struggle during which the appellant forcibly placed Paulette in the driver's seat. The appellant, who gave evidence at the trial, also denied that he had ever made any threats against Paulette, as alleged by Zaidie and Matadial.
Before the shooting Melrose Spence, a friend of the appellant, saw him sitting on the bonnet of his car, talking to someone in a jeep. John Johnson said in evidence that he heard two shots and saw the appellant's car reverse and then drive away from the scene ‘like a jet’. The ballistic expert's evidence was that the appellant's gun was fitted with a hammer block safety mechanism, which was in proper working order, so that it could only be fired if the trigger was fully pressed back. The minimum pressure needed to fire the gun (cocking and firing) was 7(lb. or (if the gun had been already manually cocked) 2lb., a heavy pressure in either case.
By the time that the appeal had reached this board, the appellant's case had reduced itself to seven heads. In view of the conclusion which their Lordships have reached, namely, that the appellant's conviction should be quashed and that it must be for the Court of Appeal in Jamaica to say whether a new trial should be ordered, their Lordships consider that it is unnecessary, and indeed undesirable in the interests of justice, to examine the rival contentions and the facts to which they relate with the same particularity as their lordships would have felt bound to do if their recommendation as their Lordships would have felt bound to do if their recommendation had been in favour of dismissing the appeal. Four of the appellant's submissions can be disposed of quite shortly.
As already stated, the appellant(s real defence was one of accident, but that did not dispense with the need for the judge to leave the issue of provocation to the jury if there was any evidence that the judge was wrong to have directed the jury that provocation did not arise for their for their consideration. Their Lordships, however, mindful that one of the recommended courses open to the Court of Appeal is to order a new trail, are of the opinion that on the evidence adducted at the original trial the judge was right to direct the jury as he did.
The appellant submitted, consistently with the conduct of the defence at the trial, that the trial judge ought not to have excluded his evidence, or any other admissible evidence which he could have elicited by cross-examination, tending to show that Paulette was addicted to drugs in the form of cocaine and ganja cigarettes, the appellant's object being to show that Paulette's conduct just before the shooting rendered more credible the now irrelevant defence of provocation and the defence of accident. Their Lordships concede that the judge erroneously classed as hearsay some evidence which, though tenuous, was admissible, but they consider that the evidence of Paulette's drug addiction could not, if admitted, have affected the outcome, particularly having regard to the fact that the appellant's own evidence did not tend to show that Paulette was affected by drugs at the material time.
A third point was that Crown counsel at the trial, Mr. Pantry, improperly tried to cross-examine the appellant and also commented to the jury on the appellant's exercise of the right to silence and that the trial judge was wrong not to correct him. About then hours after the shooting the appellant attended the local police station with his attorney. He was reminded of his right of silence by being cautioned on two occasions within a short time of his arrival and, acting on the advice of this attorney, he remained silent when he might have been expected to explain that the shooting had been due to an accident. Undoubtedly Crown counsel's comment was improper, but when summing up the trial judge said “an accused man having been cautioned is under no obligation to say anything. The law gives him that right … you cannot use it adversely against him”. Therefore the real complaint is that the judge did not correct Crown counsel at the time. Their Lordships are satisfied with the course taken by the trial judge and are further satisfied that the adverse effect on the jury form the appellant's point of view was in the end no greater that it would have been if counsel had not made his improper observation. To find the best way in which to correct such an observation and to nullify its effect always poses a problem for the judge because, if he intervenes immediately, the effect will probably be to emphasis the obvious relevance and cogency of the comment which ought not to have been made.
Another complaint was that the trial judge failed to give the jury any warning about the evidence of Zaidie and Matadial as witnesses who may have had a purpose of their own to serve or whose evidence of Zaidie and Matadial as witnesses who may have had a purpose of their own to serve or whose evidence counsel be tainted by an improper motive. The appellant pointed to the close relationship of those witnesses and Paulette, the background of tension and domestic strife and the animosity of each of them towards the appellant and stressed the ease with which their evidence could have been fabricated and the absence of corroboration. While not inviting the Board to adopt in regard to Zaidie and Matadial a rule which as which applies to accomplices, the alleged victims of sexual assault and young children, the appellant submitted that here was an obligation (not performed in this case) to advise the jury to proceed with caution where there was material to suggest that the evidence of the witnesses might be tainted by an improper motive.
It must have been obvious to the jury that these witnesses were in a special position, one as the husband of a woman with whom the appellant had had an intimate relationship and the other as the sister of the deceased, whom the appellant had shot, according to himself accidentally. The judge would not have erred had he drawn attention to the circumstances (which were in fact plain for all to see), but their Lordships reject the adoption of any rule which would impose new obligations on trial judges in their approach to the consideration of witnesses' evidence and they refer to the judgement delivered by Ackner, L.J. in R. v. Beck [1982] 1 W.L.R. 461, as well as in his speech in Reg. v. Spencer [1987] A.C. 128, 138 – 142.
In this case by far the most important ground of appeal was the contention that written statements made by Zaidie and Matadial to the police and not disclosed before or during the trial had been wrongly withheld from the appellant and his advisers. Zaidie and Matadial were the most important Crown witnesses to the facts, or alleged facts, which preceded and followed the shooting and the statements were one made by Zaidie to the police on 12th January, 1987, the day after the shooting, one by Matadial on the same day and an addendum by Matadial made on 9th May, 1987. Indeed, none of these statements, apart from two short but damning extracts from Zaidie's statement which the prosecution put into evidence, came to light at all and consequently were not available to the Court of Appeal until 20th July, 1990, three days before the presentation of the petition for special leave to appeal, when they were furnished to the appellant's advisers at the insistence of Mr. Guthrie who had by then been instructed on behalf of the...
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