Berry v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1992 |
| Date | 1992 |
| Court | Privy Council |
Jamaica - Crime - Evidence - Prosecution evidence - Statements to police by prosecution witnesses - Evidence of two prosecution witnesses based on statements rather than depositions - Whether duty to supply statements before trial - Discrepancies between witnesses' evidence and statements - Whether non-disclosure of statements material irregularity - Whether substantial miscarriage of justice -
The defendant shot the deceased and was charged with murder. The defence case was primarily that the shooting had been accidental. The prosecution relied on the circumstances of the shooting, an alleged confession by the defendant to the husband of the deceased, and previous threats to kill the deceased made by the defendant as testified to by the deceased's husband and sister. In accordance with general practice in Jamaica the prosecution disclosed to the defence the depositions of those witnesses taken at the committal hearing, but not their earlier statements to the police; they did not disclose to the defence before or during the trial a statement made to the police by the deceased's husband and two statements made by the deceased's sister, relating to incidents not covered in their depositions, which were inconsistent with their evidence at trial. Crown counsel informed defence counsel of an inconsistency between the sister's testimony and her first statement without showing him that statement or revealing that she had made a second statement confirming the first statement in that respect. Defence counsel's application for the judge to inspect the sister's first statement under section 17 of the Evidence ActF2 to determine whether or not it should be made available to the defence was refused. The judge in his summing up failed to direct the jury that the defendant's previous good character was primarily relevant to the question of credibility. After retirement the jury returned to court and informed the judge that they had a problem. He ascertained that it related to the evidence and not to the law, but he did not find out what the problem was and merely gave general guidance. The defendant was convicted of murder, and the Court of Appeal of Jamaica dismissed his appeal against conviction.
On the defendant's appeal to the Judicial Committee: —
Held, allowing the appeal, (1) that the appropriate means of achieving fairness to an accused with regard to disclosure to the defence of material in the prosecution's possession was a matter to be determined by the particular legislature, executive and judiciary concerned; that although the Jamaican practice, particularly in relation to inconsistent previous statements, would normally be an acceptable means of achieving such fairness it did not extend to every situation in which fairness required the prosecution to make material available to the defence; that where the prosecution intended a witness's evidence to be based on his statement to the police and to deviate significantly from his deposition, the prosecution was under a duty to supply the defence with a copy of the statement before the trial; and that, therefore, since the deceased's husband and sister had given evidence inconsistent with their statements, and important testimony had been adduced from them which had not been foreshadowed in their depositions, the failure to disclose their statements to the defence constituted a material irregularity (post, pp. 161H–162A, B, B–C, 165C–E).
(2) That the judge's failure to direct the jury adequately as to the defendant's previous good character was a material misdirection which could have caused injustice to him; that at any stage of the trial the jury were entitled to the judge's assistance on the facts as well as on the law, the withholding of which constituted an irregularity which might, depending on the circumstances, be material; and that the judge had erred in failing to ascertain what the jury's problem was and to give the requisite help (post, pp. 166C, F–G, 167G, H).
(3) That since it could not be said that the jury would inevitably have convicted the defendant if before the trial the defence had been given the statement of the deceased's husband and the two statements of her sister, if the jury had properly been directed with regard to evidence as to the defendant's previous good character, and if they had received guidance from the judge on their problem concerning the evidence, the proviso to section 14(1) of the Judicature (Appellate Jurisdiction) Act could not be applied to uphold the conviction; and that, accordingly, the case would be remitted to the Court of Appeal of Jamaica with the direction that it should quash the conviction and either enter a verdict of acquittal or order a new trial, whichever it considered proper in the interests of justice (post, p. 169C–D, G–H).
The following cases are referred to in the judgment of their Lordships:
Anderson v. The Queen [
Baksh v. The Queen [
Davies v. The King (
Flanagan v. Fahy [
Fox v. General Medical Council [
Jencks v. United States (
People v. Rosario (
Practice Note (Criminal Evidence: Unused Material) [
Reg. v. Ashley [
Reg. v. Barrett (
Reg. v. Beck [
Reg. v. Bellis [
Reg. v. Berrada (Note) (
Reg. v. Cohen (
Reg. v. Falconer-Atlee (
Reg. v. Foxford [
Reg. v. Grant and Hewitt (
Reg. v. Hall (
Reg. v. Maguire [
Reg. v. McKenna [
Reg. v. Marr (
Reg. v. Purvis and Hughes (
Reg. v. Spencer [
Reg. v. Walhein (
Reg. v. Watson [
Rex v. Clarke (
Stinchcombe v. The Queen (unreported), 7 November 1991
Stirland v. Director of Public Prosecutions [
Woolmington v. Director of Public Prosecutions [
The following additional cases were cited in argument:
Reg. v. Kane (
Reg. v. Lawson (
Reg. v. Sansom [
Reg. v. Saunders (
Reid v. The Queen [
Appeal (No. 40 of 1990) with special leave by the defendant, Linton Berry, from the judgment of the Court of Appeal of Jamaica (Carey P. (Ag.), Campbell and Wright JJ.A.) on 10 November 1989, reasons being given on 12 March 1990, dismissing his appeal against his conviction of murder on 22 March 1988 before Wolfe J. and a jury in the Kingston Home Circuit Court.
The facts are stated in the judgment of their Lordships.
Roy Amlot Q.C. and Richard Small (of the Jamaican Bar) for the defendant.
Glen Andrade Q.C., Director of Public Prosecutions, Jamaica, and James Guthrie for the Crown.
15 June. The judgment of their Lordships was delivered by Lord Lowry.
This is an appeal by special leave of Her Majesty in Council granted on 24 July 1990 from the judgment of the Court of Appeal of Jamaica given on 10 November 1989 and dismissing the defendant's appeal against his conviction on 22 March 1988 in the Home Circuit Court, Kingston, Jamaica for the murder of Paulette Zaidie (“Paulette”) on 11 January 1987.
Paulette died as a result of a head wound inflicted by a single bullet fired at point blank range (3–5 inches) from the defendant's Smith & Wesson. 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 defendant 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 defendant to Paulette's husband, Jimmy Zaidie (“Zaidie”) immediately after the shooting, and...
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