Ebanks v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 16 February 2006 |
| Neutral Citation | [2006] UKPC 6 |
| Court | Privy Council |
| Docket Number | Appeal No 4 of 2005 |
| Date | 16 February 2006 |
[2006] UKPC 6
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
Privy Council
[Delivered by Lord Carswell]
The appellant was on 3 March 2000 convicted after a trial in the Home Circuit Court, Kingston before Harrison J and a jury of the capital murder on 4 February 1998 of Joel Russell and sentenced to death, in accordance with the mandatory provisions then in force in Jamaica. He appealed against his conviction, but on 31 July 2001 the Court of Appeal of Jamaica (Forte P, Walker JA and Smith JA (Ag)) dismissed his appeal. He has appealed to the Privy Council against conviction and sentence, with special leave given on 27 July 2004. The appeal raises issues of the requirement of an identification parade in cases of identification by recognition and of the direction to be given to a jury in capital murder cases.
The appellant was charged under section 2 of the Offences against the Person Act, as amended by the Offences against the Person (Amendment) Act 1992. The material parts of section 2, which govern capital murder, provide as follows:
2. – (1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say –
∗∗∗∗∗
( b) the murder of any person for any reason directly attributable to –
(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings;
∗∗∗∗∗
(2) If, in the case of any murder referred to in subsection (1) (not being a murder referred to in paragraph ( e) of that subsection), two or more persons are guilty of that murder, it shall be capital murder in the case of any of them who by his own act caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the person murdered, or who himself used violence on that person in the course or furtherance of an attack on that person; but the murder shall not be capital murder in the case of any other of the persons guilty of it."
The sole eye-witness who gave evidence at the appellant's trial was Isaiah Russell ("Isaiah"), a brother of the murder victim Joel Russell ("Joel"). He stated that on 4 February 1998 about 8.40 pm he was walking along Olympic Way, Kingston in the direction of Maple View Avenue when he saw Joel in a van with his girlfriend. Joel stopped the van and Isaiah spoke to him. Isaiah saw two men approaching the van with their hands in their pockets. He said that he recognised one of them as a man known in his neighbourhood as "Country". This man said to Joel "Yuh nah stop goh a court pon mi cousin?" The Crown case was that this was a reference to the fact, established in evidence, that Joel was prior to his death scheduled to be a witness in criminal proceedings for shooting with intent brought in the Gun Court against one Kevin ("Prince") Thompson. Joel and his girlfriend started to get out of the van when "Country" took something from his pocket and pointed it towards Joel. Isaiah heard a loud noise like a shot, then Joel and his girlfriend ran into 24 Maple View Avenue. Isaiah heard more explosions and retreated a short distance down Maple View Avenue. He turned to look back and saw "Country" and the other man emerge from the house and make off. Detective Corporal Fletcher arrived a few minutes later and found Joel's apparently dead body lying in the yard in 24 Maple View Road, with gunshot wounds visible to the back of the head, lower back and face. No one was willing to give a statement about the incident. Post mortem examination established that the deceased had sustained six gunshot wounds, which caused his death.
Isaiah said that he was able to recognise the gunman as "Country", because he was four or five feet from him when he pulled the gun and saw his face for about three minutes in bright street lighting. He did not know his proper name nor had he ever spoken directly to him, but he was known in the Majesty Gardens community where he lived by the name of "Country". There were some discrepancies and uncertainties in Isaiah's evidence about how long he had known "Country", but he claimed that he had known him for upwards of seven years, though he had not seen him for the previous two years. He said that he lived at one end of Majesty Gardens and the appellant at the other end, about a quarter of a mile away, and he used to see him regularly, "like once a week" (Record, p 17). Defence counsel suggested to the witness that the appellant never lived in the Majesty Gardens community, but that only shortly before the incident he used to visit a girl in Majesty Gardens (Record, p 19). At trial Isaiah made a dock identification of the appellant as the man he knew as "Country".
Isaiah did not give a statement to the police until immediately after the appellant was arrested in April 1998. He then described the assailant as brown, with a big nose and a gold or silver crown on a tooth. When asked why it was so long before he gave a statement he said that there was a reason, and when pressed he said that it was because he and the appellant were living in the same area.
On 4 May 1998 an identification parade was held, at which Isaiah Russell identified the appellant as the gunman whom he knew as "Country" and whom he had seen in Maple View Avenue at the time of the shooting. It was common case that there was at least one significant defect in the procedure, upon which the appellant's counsel placed some reliance in support of their contention that the conviction was unsafe.
The parade was held with the use of a one-way mirror, through which the identifying witness could see the parade but could not be seen. In accordance with the Jamaica Constabulary Force Rules, as amended, an attorney-at-law and a Justice of the Peace should both have been present at the parade. If the prisoner did not nominate an attorney or if the attorney chosen by the prisoner was not available, then either one should have been drawn from a Legal Aid Clinic or the officer conducting the parade should have selected one from among those willing to undertake the assignment. Although the evidence of Sergeant Crawford was that a Justice of the Peace was at the parade, no attorney was present. The appellant's counsel was unable, however, when invited by the Board to do so, to point to any feature of the parade in respect of which the advice of an attorney was likely to have conferred a significant advantage upon the appellant. The prosecution evidence was that the appellant said that a relative of his, Rebecca Taylor, would represent him instead, and Sergeant Crawford deposed that Rebecca Taylor was present at the parade (though her name does not appear on the identification form completed). The appellant averred in his evidence (Record, p 164) that he did not state that he wished to be represented by a cousin. He said further that he did not have a cousin named Rebecca Taylor and then, in a later passage (Record, p 173) that he had no cousins at all.
Eight other men were lined up with the appellant on the parade, the appellant electing to occupy place number two. All were described on the parade form as being "dark brown" and their heights varied between five feet seven inches and five feet ten and a half inches. The appellant was five feet ten inches, so all the participants in the parade but that one person were shorter than the appellant, a fact relied upon by his counsel as constituting a defect in the fairness of the arrangements. Isaiah picked out the appellant as the man he knew as "Country" who took part in Joel's murder.
The feature upon which most stress was laid on behalf of the appellant was a claim that he had been exposed to the view of Isaiah Russell at the Gun Court and pointed out to him there, so that the identification made at the parade was fatally flawed. The appellant said in his evidence (Record, p 163) that he had been taken to the Gun Court and there had seen a brown man who looked like Isaiah, then later he said more positively that he had seen him at court. Detective Sergeant James accepted in cross-examination that on a day prior to the identification parade which he could not specify he went to the Gun Court, where the appellant had been taken as the result of a "mix-up", to remove him from there. He said that he did not see Isaiah Russell at the Gun Court. Isaiah for his part denied (Record, p 58) that he had seen the appellant at that court and further denied the suggestion that the appellant had been pointed out to him there.
Detective Sergeant Hamilton proved that Joel Russell had been the complainant in a case brought in the Gun Court against Kevin ("Prince") Thompson of shooting with intent which he was investigating. It was still pending at the time of Joel's death and Joel had attended as a witness before he was killed. The case had later been disposed of, the implication being that it could not proceed without Joel's evidence.
The appellant gave evidence at trial, but did not call any witnesses. His evidence was to the effect that he had been wrongly identified, as he had nothing to do with the shooting. It consisted of a comprehensive series of denials of much of the testimony given on behalf of the Crown. He claimed that he was not known by the name of "Country" or any other nickname, nor did he live in Majesty Gardens. He lived in Grove Road, off Waltham Avenue, some distance away from Maple View Avenue or Majesty Gardens. He...
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