Mount Murray Country Club Ltd v Macleod
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe,Lord Hutton |
| Judgment Date | 07 July 2003 |
| Neutral Citation | [2002] UKPC 53,[2003] UKPC 53 |
| Court | Privy Council |
| Docket Number | Appeal No. 14 of 2003,Appeal No. 67 of 2001 |
| Date | 07 July 2003 |
[2002] UKPC 53
Privy Council
Present at the hearing:-
Lord Steyn
Lord Hoffmann
Lord Hutton
Lord Millett
Lord Scott of Foscote
[Delivered by Lord Hutton]
On 15 May 1993 Winston Bowers and two children, Nikeisha Samuels and Christopher Grey, were murdered in a house in Spanish Town Road, Kingston, by a number of men. The circumstances of the murders were extremely brutal. Winston Bowers was shot in the back, Nikeisha Samuels was shot in the back of the head and Christopher Grey was shot twice and was stabbed four times.
In addition to the three persons who were murdered a number of other people were present in the house when the murders took place. They were Nicola Bowers, who was the daughter of Winston Bowers and was then aged 13 and the sister of Nikeisha Samuels and Christopher Grey, a man named Neville Johnson, a friend of Winston Bowers, and two other children.
The five appellants were arrested for the murders and, with the exception of Clifton Shaw, they all denied being present in Winston Bowers' house or any participation in the murders. Clifton Shaw made a statement to the police in which he said that he was there but he did not shoot anyone, and this statement was admitted in evidence at the trial.
At the trial in June 1996 of the five appellants for capital murders in the course of and in furtherance of a burglary the case for the Crown was primarily based on the evidence of Nicola Bowers, who was then aged 16. In her evidence she said that at about 8.30 pm on 15 May 1993 she was at home having dinner and watching television with the three deceased, together with Neville Johnson and two other children, when she saw a group of men come into the yard. She heard shots fired and the men knocked down part of the door and came into the house. She, Nikeisha Samuels and Christopher Grey and the other children hid under a bed and her father, Winston Bowers, and Neville Johnson stayed sitting on a hassock. Her father then ran out of the door. She said that she knew the men who came into the house, they were the five appellants. She knew them by nicknames and she used to see them all regularly in the local area. She said that the appellant, Clifton Shaw, had a knife and that the others had guns. The men turned over the bed under which she was hiding and began to fire and Clifton Shaw then cut her brother's throat with his knife and another man shot her sister. The men then stole a video and left the house. She said in her evidence that she had seen the faces of the five appellants clearly and had had no difficulty in recognising them as being the men who had murdered her father, brother and sister. She denied the suggestions of defence counsel that she had not seen the faces of the persons involved in the killings.
Nicola Bowers was the only witness at the trial who described what happened in the house at the time of the killings and who identified the five appellants as the murderers. Neville Johnson was not called as a witness by the prosecution or by the defence.
In the attack on the persons in the house Neville Johnson was himself shot a number of times in the buttocks and was also shot in the hand. He was taken for treatment to the Kingston Public Hospital. Inspector Ivanhoe Thompson was the police officer in charge of the investigation into the murders and in an affidavit sworn on 26 April 1999 he states:
"5. Later, on the same day I went to the Kingston Public Hospital where I saw and spoke with one Neville Johnson, a victim of the crime at 821/2 Spanish Town Road.
6. I asked Mr Johnson about the incident. He told me that he was inside the house when a number of men entered the premises, about four (4) men and started shooting.
7. I told him that we had recovered a video near the crime scene and if he could identify it he said no. He did not indicate whether he knew any of the men but he gave a description of the men who shot him. Mr Johnson said nothing about any of the men wearing mask and I did not ask him about any man in a wheel chair.
8. I gave Johnson instructions to attend the Hunts Bay Police Station in order to give a statement and then I left the hospital.
9. Mr. Johnson subsequently came to the station on the 3rd day of June 1993 and I instructed Detective Corporal Walters to record his statement. To my knowledge this was done. Corporal Walters has since migrated. I did not force him to identify anyone and he did not inform me that any of his assailants had on masks. His statement dated 3rd day of June 1993 which I exhibit hereto and mark it 'IT 1' for identification was subsequently handed over to me and I placed it on the file.
10. Mr. Johnson told me he was afraid that the men would come back and kill him.
11. I asked him if he has nowhere else to go, he said yes. I then made arrangements for him to be taken out of the area for his own protection.
12. I did not place him on the witness protection programme. …
17. I have not seen Mr Johnson since he was taken to premises in Caymanas Park Estate by the police on my instructions.
18. I have never asked him to identify the suspect in custody because he was not available.
19. I had subsequently received information and I verily believed that Mr Johnson had migrated to England. I communicated this fact to Ms Paula Llewellyn Deputy Director of Public Prosecutions, before the commencement of the trial. She elicited evidence about Mr Johnson from me on oath during the course of the trial."
In the statement which Inspector Thompson says Neville Johnson made to Corporal Walters and which is signed "Neville Johnson" and dated 3 June 1993, Neville Johnson states that on the evening of 15 May 1993 he went to Winston Bowers' house. Four men came into the kitchen where he was and one of them put a knife to his neck. Another man shot him in the buttocks and pushed him down. The man then shot him again in the buttocks and also shot his hand. He was feeling pain and he lay down as if he were dead. He heard a voice saying "kill, kill" and other voices saying "cold-blooded murderer". He heard two shots and then he heard a sound like that of killing a goat and the goat frothing. A lot of blood began to spew on him because they were near him in the room. The last thing he heard was the men saying "take up the video". After the men had left he took the surviving children to his own home and he then went to the hospital. The statement concludes as follows:
"The man who shot me is of a clear complexion, slimly built and is about 5 ft tall. The gun he had looks like a .22.
At the KPH I was treated and then sent home.
On Thursday June 3 1993 I gave this statement to the police at Hunts Bay. It was read over to me and I signed it as being true and correct."
Below the signature "Neville Johnson" there is the certificate:
"Taken down by me this day Thursday June 3 1993 at Hunts Bay Police Station. It was read over to the maker who signed it as being true and correct."
The certificate is signed: "Walters Cpl H4521" and dated "3.6.93".
At the conclusion of the trial the jury found each of the five appellants guilty of three capital murders and they were each sentenced to death. On 31 July 1997 the appellants' appeals against their convictions were dismissed by the Court of Appeal.
On 25 June 1998 the appellants' petitions for special leave to appeal against the decision of the Court of Appeal were heard by the Judicial Committee of the Privy Council and by order of Her Majesty in Council dated 21 July 1998 (i) special leave was granted to appeal; (ii) the hearing of the petitions was treated as the hearing of the appeals; (iii) the appeals were allowed to the extent of quashing the convictions for capital murder and substituting convictions for non-capital murder; and (iv) the appellants' sentences of death were confirmed. The reason for the decision in respect of the convictions was that the appellants ought not to have been charged with capital murders in the course of and in furtherance of a burglary. Their arguments against conviction were otherwise rejected, and because they were each convicted of more than one murder committed on the same occasion, they remained subject to sentence of death.
The case was subsequently referred to the Court of Appeal by the Governor General under section 29(1)(a) of the Judicature (Appellate Jurisdiction) Act.
On the hearing before the Court of Appeal pursuant to the reference two matters were relied on by the appellants. One matter was that there had been a material irregularity at the trial because the prosecution should have disclosed to the defence that Neville Johnson had made the statement of 3rd June 1993 and that the failure to disclose constituted a material irregularity. The second matter was that Neville Johnson had sworn an affidavit in England on 24 June 1998 in which he stated that the four men who entered Winston Bowers' house on 15 May 1993 were wearing balaclavas and that later on that evening when he was in Kingston Public Hospital Inspector Thompson asked him if he could identify any of the men who were at Winston Bowers' house and he said he could not; they were all wearing masks. He further said that he told Inspector Thompson two days later that he could not identify the men as each man had a mask on. The appellants applied for leave to adduce the fresh evidence contained in Neville Johnson's affidavit pursuant to section 28 of the Judicature (Appellate Jurisdiction) Act which provides:
"For the purposes of Part IV and Part V, the Court may, if they think it necessary or expedient in the interest of justice –…
(b) if they think fit, order any witnesses who would have been compellable...
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