Lobban v The Queen

JurisdictionUK Non-devolved
Judgment Date06 April 1995
Date06 April 1995
CourtPrivy Council
[PRIVY COUNCIL] DENNIS LOBBAN Appellant and THE QUEEN Respondent [APPEAL FROM THE COURT OF APPEAL OF JAMAICA] 1995 Feb. 7, 8, 9; April 6 Lord Goff of Chieveley, Lord Mustill, Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Steyn

Crime - Evidence - Admission - Statement of co-defendant implicating defendant - Co-defendant relying on exculpatory explanation in statement - Whether trial judge having discretion to exclude part of statement at defendant's request contrary to wishes of co-defendant - Direction to jury - Cross-examination of defendant by prosecuting counsel on statement - Whether material irregularity causing miscarriage of justice - Judicature (Appellate Jurisdiction) Act, s. 14(1)

The defendant and his co-defendant were tried on three counts of murder, alleged to have been committed during the course of a robbery. In his statement under caution to the police the co-defendant admitted driving three unknown men to the scene of the robbery, but he stated that he had not known their intentions and had driven them away from there under duress. In the last paragraph he stated that later he recognised a photograph in a newspaper as being of one of the men he had driven to the house and had seen leaving it with a gun, and that the name of the defendant was below the photograph. When the prosecution sought to tender that statement as part of its case against the co-defendant counsel for the defendant, in the absence of the jury, asked the judge to direct the exclusion of the final part implicating the defendant. Prosecuting counsel and counsel for the co-defendant objected, and the judge ruled that the statement should be admitted in its entirety. The defendant subsequently gave evidence and was cross-examined by counsel for the co-defendant, and also by prosecuting counsel who put the statement to the defendant. After the close of the defendant's case counsel for the co-defendant, in the presence of the jury, submitted that he had no case to answer. The judge upheld that submission and the co-defendant was discharged. In his summing up the judge directed the jury that the co-defendant's statement was not evidence against the defendant and they should discard it entirely. The defendant was convicted of murder on all three counts and his application for leave to appeal against his convictions was dismissed by the Court of Appeal of Jamaica.

On the defendant's appeal to the Judicial Committee:—

Held, dismissing the appeal, (1) that, although a judge had a discretion to refuse to admit evidence tendered by the prosecution if in his opinion its prejudicial effect outweighed its probative value and in a joint trial he could exclude evidence on which the prosecution intended to rely as being probative of its case against one defendant if it would be unduly prejudicial to another defendant, the judge had no discretionary power at the request of one defendant to exclude relevant evidence, albeit tendered by the prosecution, which was prejudicial to him but tended to support the defence of another defendant; that, accordingly, where a statement of a co-defendant contained admissions and an exculpatory explanation the judge had no discretionary power to direct on the basis of justice as between defendants the editing of the exculpatory part on which the co-defendant wished to rely; that while the co-defendant's statement was not admissible in evidence against the defendant the entire statement was relevant and admissible as part of the prosecution's case against the co-defendant, and since the last part of the statement, which implicated the defendant and referred to him by name, was of significant relevance to the co-defendant's defence he had an absolute right to have the whole of that exculpatory material in his statement placed before the jury; that the judge had therefore not erred in refusing to order the editing of the statement; and that, in any event, the judge had been entitled to consider that it would be unfair to the co-defendant for any of his exculpatory explanation to be excluded and he would have had no justification for concluding that the admission of the last part would be of greater prejudice to the defendant than its exclusion would be to the co-defendant (post, pp. 883D, F–G, 884H–885A, E–F, F–G, 886G–887E, H–888A, B).

Rex v. Gunewardene [1951] 2 K.B. 600, C.C.A.; dictum of Lord Morris of Borth-y-Gest in Murdoch v. Taylor [1965] A.C. 574, 584, H.L.(E.) and Reg. v. Neale (Paul) (1977) 65 Cr.App.R. 304, D.C. applied.

Reg. v. Jefferson [1994] 1 All E.R. 270, C.A. not followed.

(2) That where the interests of justice did not require separate trials and the statement of one defendant implicating another defendant was admitted in evidence, the trial judge had a duty to protect the interests of the latter from the real risk of prejudice by giving explicit directions to the jury that the statement was not evidence against him; and that since the judge had properly fulfilled that duty, the admission of the statement of the co-defendant in its entirety before he was discharged did not constitute an irregularity (post, p. 889B–D).

(3) That although the submission that the co-defendant had no case to answer should have been made at the end of the prosecution case and before the defendant gave evidence and was cross-examined by counsel for the co-defendant that was not a material irregularity and had caused no prejudice to the defendant; that the irregular procedure of that submission having been made in the presence of the jury had caused no prejudice to the defendant; that since the co-defendant's statement was inadmissible in the case against the defendant his cross-examination on it by prosecuting counsel constituted a material irregularity; but that, in all the circumstances, no miscarriage of justice had occurred and so the proviso to section 14(1) of the Judicature (Appellate Jurisdiction) Act would be applied and the defendant's convictions would be upheld (post, pp. 889E, F, G, H, 890A, C, E).

Decision of the Court of Appeal of Jamaica affirmed.

The following cases are referred to in the judgment of their Lordships:

Crosdale v. The Queen [1995] 1 W.L.R. 864, P.C.

Murdoch v. Taylor [1965] A.C. 574; [1965] 2 W.L.R. 425; [1965] 1 All E.R. 406, H.L.(E.)

Reg. v. Hereora [1986] 2 N.Z.L.R. 164

Reg. v. Jefferson [1994] 1 All E.R. 270, C.A.

Reg. v. Mathias [1989] Crim.L.R. 64

Reg. v. Miller [1952] 2 All E.R. 667

Reg. v. Neale (Paul) (1977) 65 Cr.App.R. 304, D.C.

Reg. v. Rogers and Tarran [1971] Crim.L.R. 413

Reg. v. Sang [1980] A.C. 402; [1979] 3 W.L.R. 263; [1979] 2 All E.R. 1222, H.L.(E.)

Reg. v. Sharp (Colin) [1988] 1 W.L.R. 7; [1988] 1 All E.R. 65, H.L.(E.)

Reg. v. Silcott [1987] Crim.L.R. 765

Rex v. Christie [1914] A.C. 545, H.L.(E.)

Rex v. Gunewardene [1951] 2 K.B. 600; [1951] 2 All E.R. 290, C.C.A.

The following additional cases were cited in argument:

Ajodha v. The State [1982] A.C. 204; [1981] 3 W.L.R. 1; [1981] 2 All E.R. 193, P.C.

Badry v. Director of Public Prosecutions [1983] A.C. 297; [1983] 2 W.L.R. 161; [1982] 3 All E.R. 973, P.C.

Berry v. The Queen [1992] 2 A.C. 364; [1992] 3 W.L.R. 153; [1992] 3 All E.R. 881, P.C.

Buxoo v. The Queen [1988] 1 W.L.R. 820, P.C.

Mears v. The Queen [1993] 1 W.L.R. 818, P.C.

Reg. v. Falconer-Atlee (1973) 58 Cr.App.R. 348, C.A.

Reg. v. Hendry (1988) 88 Cr.App.R. 187, C.A.

Reg. v. Henry, Bunting and McLean (unreported), 21 June 1985; Court of Appeal of Jamaica (Supreme Court Criminal Appeals Nos. 8, 10 and 11 of 1982)

Reg. v. Kellett [1976] Q.B. 372; [1975] 3 W.L.R. 713; [1975] 3 All E.R. 468, C.A.

Reg. v. Lake (1976) 64 Cr.App.R. 172, C.A.

Reg. v. Sat-Bhambra (1988) 88 Cr.App.R. 55, C.A.

Reg. v. Smith (William) (1986) 85 Cr.App.R. 197, C.A.

Rex v. Anderson (1929) 21 Cr.App.R. 178, C.C.A.

Rex v. Thompson [1917] 2 K.B. 630, C.C.A.

Scott v. The Queen [1989] A.C. 1242; [1989] 2 W.L.R. 924; [1989] 2 All E.R. 305, P.C.

APPEAL (No. 23 of 1993) with special leave by the defendant, Dennis Lobban, from the judgment of the Court of Appeal of Jamaica (Carey, Forte and Morgan JJ.A.) on 4 June 1990 giving reasons for on 14 May 1990 refusing his application for leave to appeal against his convictions of murder on 17 June 1988 before Patterson J. and a jury in Kingston Home Circuit Court.

The facts are stated in the judgment of their Lordships.

Peter Thornton Q.C. and Nicholas Paul for the defendant.

James Guthrie Q.C. for the Crown.

Cur. adv. vult.

6 April. The judgment of their Lordships was delivered by Lord Steyn.

On 11 September 1987, in the parish of Saint Andrew, in Jamaica, three robbers armed with guns entered a dwelling house. During the course of the robbery they shot and killed three men. By an indictment containing three counts the appellant (the first defendant) and Steve Russell (the second defendant) were charged with the three murders. Both defendants pleaded not guilty. After the prosecution closed its case, and after the appellant (“Lobban”) had testified and called an alibi witness, the trial judge upheld a submission that Russell had no case to answer. The judge discharged Russell. On 17 June 1988, following a five day trial, the jury by unanimous verdicts convicted Lobban of all three murders. The judge passed three death sentences. Lobban applied to the Court of Appeal of Jamaica for leave to appeal against convictions. On 4 June 1990 the Court of Appeal dismissed the application. Special leave to appeal from the judgment of the Court of Appeal was granted on 10 April 1993.

The trial

The thrust of the prosecution case can be stated quite briefly. At about 7.30 p.m. on 11 September 1987 Peter Tosh and Marlene Brown, who lived together, were entertaining three visitors at their home in Saint Andrew. There was a knock on the front door. Three men entered. One man acted as the leader. They brandished guns and demanded money. Peter Tosh was an internationally known singer who had recently returned from a successful United...

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54 cases
  • R v Myers
    • United Kingdom
    • House of Lords
    • 24 July 1997
    ...to introduce it by way of cross-examination of prosecution witnesses could lead to great unfairness: see Lobban v The QueenWLR ([1995] 1 WLR 877, 888-889). A confession might be relevant both as to credibility and as to the facts in issue and it did not cease to be admissible because it was......
  • Black v R
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    • Court of Appeal (Bahamas)
    • 24 July 2017
    ...v The State of Trinidad and Tobago [2006] UKPC 9 considered Cumberbatch v R (2004) 67 W.I.R. 48 considered Dennis Lobban v The Queen [1995] 1 WLR 877 applied Duffy v H.M. Advocate [2015] HCJAC 29; 2015 S.C.C.R. 205 considered Edmund Gilbert v The Queen, PC Appeal No. 25 of 2005 considere......
  • Boxx (Dale) v R
    • Jamaica
    • Court of Appeal (Jamaica)
    • 16 December 2002
    ...and sworn evidence. The principle advanced by Dr. Williams would have been applicable if there was no evidence from the defence: see Lobban v. R [1995] 46 W.I.R 291 at 298. The judge should direct the jury that the statement was not an admission but part of the general picture and not evid......
  • R v Maharaj; and other appeals
    • Trinidad & Tobago
    • Court of Appeal (Trinidad and Tobago)
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8 books & journal articles
  • Subject Index
    • United Kingdom
    • International Journal of Evidence & Proof, The No. 8-4, December 2004
    • 1 December 2004
    ...476 US 530 (1986) 2, 16,21, 23, 26, 28, 149Lilly v Virginia, 527 US 116 (1999) .. 2, 6,9, 15, 16, 18, 21, 23, 25, 28, 29Lobban v R [1995] 2 Cr App R 573................................... 169, 171, 176Lord Advocate’s Reference No. 1 of2002, 2002 SCCR 743 .. 79, 80, 90, 96Lowery v R [1974] A......
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    • Wildy Simmonds & Hill Cyber Crime - Law and Practice Contents
    • 29 August 2019
    ...adduced by a co-accused, even if the evidence had been originally tendered by the prosecution but not relied upon ( Lobban v The Queen [1995] 1 WLR 877). It should be noted that there is no converse common law discretion to admit evidence that is otherwise inadmissible. As to point (2), the......
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    • Wildy Simmonds & Hill Cyber Crime - Law and Practice Contents
    • 29 August 2019
    ...[2000] Fam Law 610, DC 190 Lehideux and Isorni v France [2000] 30 EHRR 665, 5 BHRC 540, [1998] HRCD 891, ECHR 263 Lobban v The Queen [1995] 1 WLR 877, [1995] 2 All ER 602, [1995] 2 Cr App R 573, PC 221 Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 536, [2002] QB 321, [2001] 3 WL......
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    • International Journal of Evidence & Proof, The No. 10-1, February 2006
    • 1 February 2006
    ...Camb LJ 678.292 This might be because the defendant is an agent or former leader of that state.293 R v Myers [1998] AC 124, Lobban v R [1995] 1 WLR 877. But see PACE, s. 76A(2).294 E. Greenspan, ‘Lowering the Threshold for Admissibility of Defence Evidence in a CriminalCase’ in Law Society ......
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