Bonnett Taylor v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr,Lord Hope |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] UKPC 8 |
| Date | 14 March 2013 |
| Docket Number | Appeal No 0039 of 2011 |
| Court | Privy Council |
[2013] UKPC 8
Lord Hope
Lord Kerr
Lord Reed
Lord Carnwath
Sir John Chadwick
Appeal No 0039 of 2011
Privy Council
Appellant
Michael Birnbaum QC
John McLinden QC
Malcolm Birdling
(Instructed by Herbert Smith Freehills LLP)
Respondent
Howard Stevens QC
(Instructed by Charles Russell LLP)
Heard on 11 December 2012
At about 9.30 pm on 10 September 1998 Anthony Williams ("Grassy") was shot dead at his home at Stanton in the Parish of Portland. The appellant Bonnett Taylor ("Beppo") was arrested on 23 September 1998 and charged with his murder. He went to trial at the Portland Circuit Court, Port Antonio on 3 and 4 December 1998, but the jury failed to arrive at a verdict. He went to trial there for a second time on 2 March 1999. On 4 March 1999 he was found guilty of the murder and sentenced to life imprisonment. The trial judge, Clarke J, ordered that he must serve 25 years before becoming eligible for parole.
The appellant appealed against his conviction and sentence. But his seven grounds were "home-made", and senior counsel who appeared on his behalf at the hearing in the Court of Appeal on 30 November 1999 said that he could find no arguable grounds for an appeal. The appeal was dismissed, and the conviction and sentence were affirmed. It was ordered that the sentence was to run from 15 April 1999, eighteen months after the appellant was taken into custody. On 14 December 2011 he was given permission to appeal to the Board. For the reasons that were discussed in Hamilton v The Queen [2012] UKPC 31, [2012] 1 WLR 2875, paras 5–9 no point has been taken about the delay in his application for permission to appeal.
The case for the prosecution depended almost entirely on the eye witness evidence of Aubin Grey ("Skinner"). He said that on the evening of 10 September 1998 he went with the deceased from a neighbour's yard to the deceased's house. They got up onto the verandah and he was at the door of the house when the appellant appeared. He had known the appellant for many years, and he could see his face from the street light. The appellant said to the deceased, who was still on the verandah and had weed in his hand to make a cigar, "Gi mi whey you have bwoy". The deceased pushed the appellant, who then shot him. The deceased fell from the verandah and dropped to the ground, whereupon the appellant shot him again while he was lying down. Grey then ran away to the home of his neighbours, Mr Lascelles Hartley ("Bigga") and his wife Valda ("Betty"). He said that he told them what had happened. The incident had lasted for about two minutes. About two days after the incident he saw the appellant again as he was walking with a friend from his girlfriend's house. The appellant told Grey's friend to go on, as he wanted to talk to Grey. He then told Grey that he never meant to shoot Grassy. He had done so only because Grassy had pushed him. Grey's cross-examination was limited to the reliability of his identification of the accused as the person who shot the deceased because it was dark.
The prosecution called four other witnesses: Dr Robert Taylor, who had carried out a post mortem examination of the deceased; Detective Sergeant Derrick Hart, the investigating officer, who said that he found the deceased's body at about 7.30 am on 11 September lying on its back at the front of the house and that there was vegetable matter resembling ganja in one hand; Lascelles Hartley; and Marshall Francis, the deceased's brother, who identified him to Dr Taylor. Lascelles Hartley had given an undated statement to the police. He did not give evidence at the first trial, but was the subject of a notice of additional evidence which was served on the defence on the second day of the second trial. He said that he had known the deceased, who used to come to his house, for about a year and six months. The deceased's house was about five chains (about 110 yards) away from his own house, where he lived with his wife and children. At about 9.45 pm on 10 September 1998 he was at home when he heard two gun shots. They sounded as if they were coming from the direction of the deceased's house. He went onto his verandah. Grey came into his yard and knocked on the door. Grey spoke to him and told him something. He did not speak to his wife. He then went to bed. Mr Hartley was asked some questions to test his reliability, but there was no challenge to the substance of his evidence.
The appellant did not give evidence, and he called no witnesses. He made an unsworn statement from the dock in which he said that on 10 September 1998 he had been at home with his family. He and the deceased did not have anything between them, and he did not shoot him. But he and Grey had had a fuss over some fishing gear, as a result of which he had beaten Grey up. He said that it was because of malicious feelings for him that Grey had said that he had seen him at Grassy's home that night.
At the start of the third day of the trial, Crown counsel told the judge in the presence of the jury that there was a matter on which his guidance and assistance was required regarding a member of the jury. A juror had indicated to another barrister that she knew the appellant and that this was more than a passing acquaintance. She wanted the matter brought to the court's attention because her conscience was affected. Still in the presence of the jury, the judge asked the juror to confirm what she was said to have said, which she did. He asked her whether or not the fact that she knew the appellant as someone who was not just of passing acquaintance meant that she did not wish to proceed any further to try the case, to which she said, "Yes sir." She confirmed that her conscience would affect her, one way or the other, in determining any issue of fact in the case. Counsel for the appellant, Mr Carl McDonald, said that he had no questions to ask her. The judge then discharged the juror from participating any further in the trial.
Mrs Hartley had given a statement to the police a few days after the murder on 15 September 1998, but her evidence was not adduced at the preliminary examination and she did not give evidence at either trial. She said in her statement that the deceased, whom she had known from about November 1997, came to live in a house about five chains from her house in April 1998. She saw him on 10 September 1998 at about 7 pm at the gate of her house. He asked for a bag with mangoes that he had left there, took the bag and went to his yard. At about 9.30 pm she was at home with her husband, her four children, two grandchildren and "a friend of the family, Aubin Grey o/c "Skinner". She heard two explosions sounding like gun shots. She said to her husband, "Bigga, what is that?" He replied, "Betty, I don't know". She also heard a voice saying "Jesus". It seemed to come from the deceased's yard. She told her husband to shut the door. The next day her husband and Grey left the house at about 5.30 a.m. and 6.00 am respectively. At about 7.00 am she and three others went to the deceased's yard, where they saw him lying on his back and that his house was open. On seeing that, they turned back and raised the alarm.
Steps were taken by the appellant's solicitors to discover why Mrs Hartley's evidence was not adduced at the trial. It was discovered that Mr McDonald had a copy of her statement on his case file. He said that he was not certain when he received it or in what circumstances. He was unable to give a coherent or consistent explanation as to why he did not make use of the statement at the second trial or call Mrs Hartley to give evidence. The statement which she gave to the police is the only indication, even now, of what she might have said if she had been called to give evidence.
There are two issues in this appeal, neither of which was mentioned in the "home made" grounds of appeal that were before the Court of Appeal.
The first issue arises from the fact that Mrs Hartley's evidence was not before the jury at the second trial. The appellant submits that her evidence was of such importance that in its absence the trial was unfair. If it is essential to establish who was at fault, he submits that the prosecution was at fault for not having disclosed the statement in sufficient time to enable his lawyers to interview her and seek to call her if they wished. Alternatively, if the statement was served sufficiently early to enable defence counsel to seek to call Mrs Hartley, counsel was negligent in failing to use the statement as a basis for cross-examination of Grey and Mr Hartley and in failing to call her or seek to have her statement read under section 31D of the Evidence Act, as amended.
The second issue arises from the discharge of the juror who said that she was unwilling to remain on the jury because she knew the appellant. When the appellant's antecedents were made known to the court after the verdict was returned it was revealed that he had three previous convictions recorded against him: (1) assault occasioning bodily harm; (2) unlawful wounding; and (3) possession of ganja. His sentences were a fine of $500 or ten days', a fine of $400 or four months' and $500 or ten days' hard labour respectively. The appellant submits that the questioning of the juror should have been done in the absence of the other members of the jury. In any event the trial judge should have made proper inquiry as to whether the juror had mentioned her knowledge of the appellant to the remaining jurors and, if so, to whom she had spoken and what she said.
The appellant submits that on either or both of these grounds he has suffered a miscarriage of justice, and that his conviction should be set aside as unsafe.
Inquiries as to...
To continue reading
Request your trial
-
Jerome Dixon v R
...counsel, at that time, was aware that there was a previous trial. 70 We considered the approach of the JCPC in Bonnett Taylor v The Queen [2013] UKPC 8, at paragraph 13. In that case the witness, Mrs Hartley, gave a statement to the police but her evidence was not taken at the preliminary ......
-
Willard Williamson v R
...Henry-Anderson, that the pivotal consideration for this court in view of the complaint concerning non-disclosure is that stated in Bonnett Taylor v The Queen [2013] UK PC —; [2013] WLR (D) 104. There, Lord Hope, in speaking for the Board, opined at paragraph 13, in so far as is relevant: “......
-
Practice Direction (Costs in Criminal Proceedings) 2015
... ... 2.3 In the High Court 2.3.1 The Divisional Court of the Queen's Bench Division may make a defendant's costs order on determining proceedings in a criminal cause ... ...
-
Criminal Practice Directions 2015
...jury on a number of matters. 26G.2 Jurors can be expected to follow the instructions diligently. As the Privy Council stated in Taylor [2013] UKPC 8, [2013] 1 W.L.R. 1144: The assumption must be that the jury understood and followed the direction that they were given: … the experience of tr......
-
Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court
...was prompted by Lord Kerr’s dissent in a Privy Council case on miscarr iage of justice, Ta y l o r(Bonnett) vThe Queen [2013] UKPC 8, [2013] 1 WLR 1144.60 n 46 above.61 [2004] UKHL 12, [2004] 1 WLR 807.62 (2009) 49 EHRR 37.63 McCaughey n 17 above, at [127] per Lord Dyson.C2020 The Authors.......