Irvin Goldson and Another v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 23 March 2000 |
| Judgment citation (vLex) | [2000] UKPC J0323-1 |
| Court | Privy Council |
| Docket Number | Appeal No. 64 of 1998 |
| Date | 23 March 2000 |
[2000] UKPC J0323-1
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Mackay of Clashfern
Lord Hoffmann
Lord Clyde
Sir Patrick Russell
Privy Council
[Delivered by Lord Hoffmann]
In the early hours of 10th April 1993, Miss Claudette Bernard woke up to find three gunmen standing by her bed. She lived in a two-room apartment in a tenement yard on Banana Street, Franklyn Town, Kingston 16. Her boyfriend Donovan Guthrie, who lived near Walham Park Road, was staying the night and slept next to her. One of the men, holding a short gun, said "Who is you?". She replied "I am Claudette and my boyfriend from off the Waltham Park Area". The man then shot her in the face. The bullet shattered her jaw but she remained conscious. She lay pretending to be dead and while her eyes were shut she heard several more shots. When the gunmen had left she opened her eyes and saw that Donovan was dead.
Claudette was taken to hospital and given emergency treatment to her jaw. The doctors wired her teeth together so that she could not open her mouth to speak to the police when they came to see her. But she wrote down some names on a piece of paper. There is no direct evidence of which names she wrote, because a misguided concern for the hearsay rule seems to have inhibited the prosecution from leading evidence on the point or producing the paper. But the names can be inferred from a statement she made on 17th April 1993 after her discharge from hospital. She identified the gunmen as people known to her by the names Sector, Yoogie and Marlon. The police set about looking for people known by these names.
On 27th May 1993 Detective Inspector Rowe, the police officer in charge of the investigation, went to the University Hospital, where Devon McGlashan was recovering from injuries received in a recent shooting incident. According to the Inspector's evidence, another officer had told him that McGlashan was Sector but when he put this to him at the hospital, McGlashan replied that his name was Peter Phillips. Mr. Rowe nevertheless had him placed under police guard and subsequently taken to the police station, where he was arrested and charged with the murder of Donovan Guthrie and the shooting of Claudette Bernard. Under caution, McGlashan said "you and mi lawyer will talk". Irvin Goldson, who was alleged to be Yoogie, was arrested in August 1993 and similarly charged. There was no evidence that he said anything at the time.
On 24th November 1993 a preliminary examination was opened in the Resident Magistrate's Division of the Gun Court against McGlashan and Goldson on a charge of murdering Donovan Guthrie. Claudette Bernard gave evidence. She said that she had known Sector for about three years and Yoogie for fifteen years. There had been no identification parade and she identified the men she said were Sector and Yoogie by pointing at McGlashan and Goldson in the dock. There was no objection to this evidence. She was cross-examined by counsel for the accused, who put it to her that she was called "Cock up" (which she accepted) and that she was a prostitute (which she denied).
After the preliminary examination, the police arrested three other men who were alleged to have been accomplices to the murder although not participants in the shooting. The man whom Claudette Bernard identified as Marlon was thought to have died during the investigation. So eventually on 20th February 1996 McGlashan, Goldson and the three other men stood trial for the murder of Donovan Guthrie in the Gun Court before Clarke J. and a jury.
Claudette Barnard was the only witness to connect McGlashan and Goldson with the murder. So everything turned on the correctness of her identification. Again she identified McGlashan and Goldson as Sector and Yoogie by pointing to them in the dock. She said, as at the preliminary examination, that she had known them for 3 and 15 years respectively. But she went into more detail about the nature of her acquaintance with them. She had seen Sector two or three times a week on the streets, outside her house or from her mother's house in nearby McIntyre Villas. She knew that his girlfriend's name was Ginger. But she had spoken to him only once. The last time she had seen him before the murder was the afternoon of the previous day. Yoogie was not around as often as Sector but she had known him much longer. They grew up in the same Franklyn Town community. She knew that he lived on Somerset Street and his mother was a Miss Tulloch.
In cross-examination, McGlashan's counsel put to her that she did not know him at all. He was not called Sector and if she knew someone called Sector, he must be someone else. Claudette insisted that she knew Sector well and that he was the man in the dock. In cross-examination of Detective Inspector Rowe, counsel asked whether he had not told McGlashan that he would put him on an identification parade. The Inspector denied it. Goldson's counsel did not challenge Claudette's evidence that she knew him well.
After the prosecution evidence, counsel for both McGlashan and Goldson submitted that there was no case to answer. The identification evidence was too weak. McGlashan's counsel drew attention to the gunman's inquiry about who Claudette was. Why should he have asked such a question if they were already known to each other? Counsel also said that the prosecution should have held an identification parade. Goldson's counsel, on the other hand, accepted that Claudette knew him and that the question was whether she had recognised him in the room. The judge overruled both submissions. McGlashan then gave evidence under oath. He said that he did not know Claudette Bernard or anything whatever about the area in which she lived. He had no girlfriend called Ginger. He knew none of the other accused. He spent the night of the murder with his girlfriend Novelette and her aunt, watching television. He did not call either of them to give evidence in support of the alibi. Goldson elected not to give or call evidence but made a statement from the dock. He said that his pet name was Big Head. He had never seen Claudette until the day of the preliminary examination and had spent the night of the murder at home with his little nephew.
In summing up, the judge gave the jury a careful warning about the dangers of identification evidence. He reminded the jury that Claudette's honesty had been put in issue. The accused had made a general attack on her credibility and said that she was not telling the truth when she said she knew them well. He mentioned the matters which might assist the jury to determine her credibility. He then gave the standard warning that even if they found her to be an honest witness, she might still be mistaken in her recognition. But he gave the jury no specific instruction on the significance of the absence of identification parades.
The jury convicted both McGlashan and Goldson of capital murder and they were sentenced to death. Both appealed to the Court of Appeal, both against conviction and the classification of the offence as capital. The grounds of appeal against conviction included complaints that the judge should have upheld the submission of no case to answer and that his directions on visual identification evidence were insufficient. But nothing was said of the absence of identification parades. Their Lordships will return later to the question of classification. On 27th October 1997 the Court of Appeal dismissed both appeals and confirmed the classification and sentences.
On appeal to their Lordships' Board, Mr. Thornton Q.C., dealing first with the appeals against conviction, placed in the forefront of his argument the fact that there had been no identification parade. He accepted that if the accused is accepted to be a person well known to the identifying witness, no parade need be held. The witness will naturally pick out the person whom he knows and whom he believes that he saw commit the crime. In fact, the evidence of the parade might mislead the jury into thinking that it somehow confirmed the identification, whereas all that it would confirm was the undisputed fact that the witness knew the accused. It would not in any way lessen the danger that the witness might have been mistaken in thinking that the accused was the person who committed the crime.
But Mr. Thornton said that in the present case, the fact that Claudette knew McGlashan and Goldson was in dispute. McGlashan made it clear from the outset, through his counsel's cross-examination of Claudette, that he denied that he was the person she knew as Sector. And although Goldson does not appear to have instructed his counsel to put forward a similar denial, he did so in his statement from the dock. The truth of this issue could have been tested by an identification parade. If Claudette had failed to pick out the accused on the parade, her assertion that the accused were known to her would have been shown to be false. By not holding identification parades, the police had denied the accused an opportunity to demonstrate conclusively that she was not telling the truth. On the other hand, if she had...
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