Jason Lawrence v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge |
| Judgment Date | 11 February 2014 |
| Neutral Citation | [2014] UKPC 2 |
| Date | 11 February 2014 |
| Docket Number | Appeal No 0029 of 2012 |
| Court | Privy Council |
[2014] UKPC 2
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
Lord Hodge
Appeal No 0029 of 2012
Privy Council
Appellant
Nigel Lickley QC
Michael Paulin
(Instructed by Dorsey & Whitney (Europe) LLP)
Respondent
Peter Knox QC
(Instructed by Charles Russell LLP)
Heard on 28 November 2013
On 27 October 2005 in the St. Elizabeth Circuit Court in Black River, Jamaica, the appellant was convicted of the murder of Mr Ervin Madourie. The judge (the Hon. Mr Justice R. Jones) sentenced him to life imprisonment and ordered that he would not be eligible for parole until he had served twenty years at hard labour. The Court of Appeal of Jamaica dismissed his appeal against conviction and affirmed his sentence on 21 November 2008. The appellant later applied to the Privy Council for permission to appeal, which was granted on 7 November 2012.
The evidence at the appellant's trial included the following. On Christmas Eve and in the early hours of Christmas Day 2004 the appellant attended a party at Tern's Café, Black River. Near the entrance to the café there was a table at which people were playing the dice game, "crown and anchor". There was an altercation close to that table between Mr Wayne Salmon and Mr Madourie. In the course of that argument, Mr Madourie threatened Mr Wayne Salmon and slapped him on the shoulder with a machete. Mr Salmon ran away and a crowd of people started to throw bottles. Mr Madourie was stabbed in the chest and the weapon, which was probably a knife, penetrated into the right atrium of his heart. He died within minutes of being wounded.
Mr Wayne Salmon and the appellant were charged with his murder. Mr Salmon was acquitted at trial after an unopposed submission that he had no case to answer.
The Crown's case against the appellant rested on (i) the evidence of three eye-witnesses, Mr Leroy Williams, Ms Jacqueline Linton and Mr Nathan Smith, and (ii) the evidence of Elwardo Salmon, the fifteen-year-old younger brother of Mr Salmon, of a brief oral confession the appellant was said to have been made when travelling home after the incident. The appellant's principal grounds of appeal are (i) that the judge wrongly allowed Ms Linton and Mr Smith to make dock identifications or, in any event, failed to give proper directions in relation to those identifications and (ii) that the judge failed to give an appropriate "axe to grind" direction to the jury about Elwardo Salmon's evidence of the alleged confession. The Board deals with each in turn.
The defence did not challenge Mr Leroy Williams's identification of the appellant. He had known the appellant and Mr Wayne Salmon for about five years and spent several hours in their presence in Tern's Café on Christmas Eve 2004. His identification of the appellant in the dock was a formality. He described the appellant as wearing "white pants and a red shirt". He saw the altercation between Mr Salmon and Mr Madourie. He later saw the appellant "punch at" Mr Madourie, who was holding a machete, and observed Mr Madourie approach with blood on his chest immediately thereafter. Mr Madourie collapsed in the passageway outside the café and never got up. He did not see the appellant holding a weapon.
The identifications by Ms Linton and Mr Smith were of a different nature. They were dock identifications properly so called as they identified the person in the dock for the first time (viz. France and Vassell v The Queen [2012] UKPC 28, Lord Kerr of Tonaghmore at paras 33–36). Ms Linton had not recognised the appellant at two identification parades. She had identified Mr Salmon at an identification parade as the man who had had a confrontation with Mr Madourie. When giving evidence at the trial, she made a dock identification of Mr Salmon as the "black guy" whom she had seen at the "crown and anchor" game. She added, in what was a dock identification, that she also made out "the brown one" (that is the appellant, who was sitting in the dock with Mr Salmon) as a person who had stood around the crown and anchor table. He had been wearing a red and white hat and a red and white shirt. She said that Mr Salmon had flashed a knife at Mr Madourie, who had slapped him on the shoulder with a machete. Mr Salmon ran away. She said that she saw the "brown one" stab Mr Madourie with a knife. She went to assist the injured man and called out for help. On cross-examination by Mr Salmon's counsel, Ms Linton explained that she had not been able to identify the person who stabbed Mr Madourie at the identification parades because on the fatal night he had had his red and white hat over his head and she did not see his face. On cross-examination by the appellant's counsel she confirmed that she had not been able to identify the appellant at the identification parades.
Mr Nathan Smith gave evidence that he had been in charge of the game of "crown and anchor". He did not see the confrontation between Mr Madourie and Mr Salmon or who had killed Mr Madourie. But he spoke of a confrontation building up when Mr Salmon placed a knife on the table. Mr Smith took the knife. "The brown one", whom he identified as the appellant in the dock, came up behind him with a long knife. When a third man approached with an ice pick, he gave the knife back to Mr Salmon as he feared "a war". Mr Smith refused a demand to hand over $500 and a fight broke out, with people throwing bottles, rocks and stones. He gave evidence to the prosecutor that at an identification parade he had been able to identify only "the black one" (Mr Salmon). He confirmed on cross-examination by the appellant's counsel that he had not identified the appellant at the identification parade.
In his summation, the judge informed the jury that an important issue in the cases was the credibility of "the witnesses who …say they saw the accused man stab the deceased". He focused on the evidence of Mr Williams and Ms Linton and did not address the testimony of Mr Smith who gave no evidence of the stabbing. He said that Ms Linton had not been able to identify the appellant at an identification parade but had been able to identify him on the night by the colour of his shirt. He gave a standard direction on the need for care in judging the circumstances and quality of an eye-witness identification, in accordance with the guidelines in R v Turnbull [1977] QB 224, 228–229. But he gave no warning of the dangers of dock identification.
In several cases this Board has held that judges should warn the jury of the undesirability in principle and dangers of a dock identification: Aurelio Pop v The Queen [2003] UKPC 40; Holland v H M Advocate [2005] UKPC D1, 2005 SC (PC) 1; Pipersburgh and Another v The Queen [2008] UKPC 11; Tido v The Queen [2012] 1 WLR 115; and Neilly v The Queen [2012] UKPC 12. Where there has been no identification parade, dock identification is not in itself inadmissible evidence; there may be reasons why there was no identification parade, which the court can consider when deciding whether to admit the dock identification. But, if the evidence is admitted, the judge must warn the jury to approach such identification with great care. In Tido v the Queen Lord Kerr, in delivering the judgment of the Board, stated (at para 21):
"…Where it is decided that the evidence [i.e. the dock identification] may be admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on that evidence and in particular to warn them of the disadvantages to the accused of having been denied the opportunity of participating in an identification parade, if indeed he has been deprived of that opportunity. In such circumstances the judge should draw directly to the attention of the jury that the possibility of an inconclusive result to an identification parade, if it had materialised, could have been deployed on the accused's behalf to cast doubt on the accuracy of any subsequent identification. The jury should also be reminded of the obvious danger that a defendant occupying the dock might automatically be assumed by even a well-intentioned eye-witness to be the person who had committed the crime with which he or she was charged."
In Holland v H M Advocate, witnesses had failed to identify an accused at an identification parade but made dock identifications. In that respect, it is the closest of the five cases, to which we have referred, to the circumstances of this appeal. In the others there had been no identification parade. In Holland Lord Rodger of Earlsferry spoke (at para 58) of "the peculiar dangers of a dock identification where a witness previously failed to identify at an identification parade." He had set out those dangers earlier in his judgment (at para 47), when he spoke of:
"the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."
Those criticisms were, he stated, at their most compelling when a witness who had failed to pick out the accused at an identification parade was invited to try to identify him in court (para 48).
In this case the identity of Mr Madourie's killer was the central issue in the trial. Ms Linton's and Mr Smith's dock identifications took place...
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