Muirhead v The Queen (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann,LORD CARSWELL,LORD MANCE |
| Judgment Date | 28 July 2008 |
| Neutral Citation | [2008] UKPC 40 |
| Court | Privy Council |
| Docket Number | Appeal No 103 of 2006 |
| Date | 28 July 2008 |
[2008] UKPC 40
Present at the hearing:-
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Carswell
Lord Mance
Lord Neuberger of Abbotsbury
Privy Council
[Delivered by Lord Hoffmann]
On the afternoon of 27 August 1997 Carlos Gunn was in his house in McKoy Lane, Kingston, when a man opened the door, drew a gun from his pocket and shot him dead. The house consisted of a single room with two beds in which Carlos lived with his common law wife Nuncia Webb, their three children and her daughter by another man. At the time of the shooting Nuncia was out but the children and two little cousins were with Carlos in the room.
Shortly after the shooting, Detective Corporal Nelson from Hunts Bay CIB office went to the house and saw the body. He spoke to Orando Gunn, the eldest of the couple's children, who was then aged 7. Orando told him that the killer was a young man known in the local community as Zaza. There does not appear to have been any other identifying witness. The police tried to find Zaza but he had disappeared.
Zaza's official name is Gerald Muirhead and he is the appellant. He was about 17 at the time and lived with his parents Alty and Sue at the other end of McKoy Lane. He and his parents were known to Nuncia Webb's mother, Gloria Gray, who lived some little distance away and to whom the children fled after the murder. Orando said that he had never spoken to Zaza but had seen him regularly on his way from school and knew him by sight. His appearance is described by his former solicitor as "quite distinctive…very dark black and unusually short, with a long body and very short legs making him look disproportionate…stocky in build." DC Nelson made a note of the name in his notebook but does not appear to have asked Orando for a description of Zaza or taken a formal written statement.
On the morning of 4 August 1998, nearly a year after the murder, some police officers brought the appellant and a number of men into Hunts Bay police station in connection with an unrelated matter. One of the policemen pointed the appellant out to DC Nelson, who told him that he had been looking for him in connection with the murder of Carlos Gunn. According to DC Nelson's evidence at the trial, the appellant denied that he was called Zaza and said that he had nothing to do with the murder.
Three days later the appellant was put on an identification parade and identified by Orando Gunn. He was then charged with the murder.
On 17 November 1999 the appellant went on trial before Cooke J in the Home Circuit Court but, after a trial lasting two days, the jury were unable to agree. He was retried before Clarke J, starting on 4 May 2000, and this time he was convicted. The judge described the crime as a vicious murder and sentenced him to imprisonment for life, specifying that he should not be eligible for parole until he had served 25 years. At both trials the appellant was represented by Mr Eric Frater, a very experienced attorney whom their Lordships understand to have since retired from practice, and Miss Althea McBean, a member of his firm.
His counsel before the Court of Appeal was Miss Janet Nosworthy, who was called to the Bar by Gray's Inn in 1972 and has been in practice since 1973. In the course of argument she abandoned the criticisms she had originally intended to make of conduct of the identity parade and the summing up. She submitted instead that, having regard to the fact that Orando was very young, his identification was uncorroborated and there were some inconsistencies between his evidence at the first and second trials, the verdict was unsafe. The Court of Appeal dismissed the appeal on 3 July 2001.
A petition for leave to appeal to the Privy Council was presented on 7 December 2006 and leave was granted on 14 December 2006.
At the hearing before the Board, Mr Birnbaum QC, on behalf of the appellant, argued thirteen grounds of appeal. On nine of these the Board did not find it necessary to ask for submissions from Mr Guthrie QC, who appeared for the Crown. Their Lordships will state their reasons for rejecting these submissions.
The first was that there were discrepancies between Orando's evidence at the first and second trials. For example, at the first trial he said that when Zaza came to the door, Carlos had peeped through a hole to see who was there. He did not mention this at the second trial. But he was asked no question at the second trial likely to elicit this detail and no significance can be attached to its omission. At the first trial he had mentioned only late in his evidence that he had seen the gunman's face while at the second trial he mentioned this early on. It was not entirely clear from his evidence exactly how many children were in the room.
More seriously, it was put to him that the killer had been one Lincoln, who was now dead. At the first trial Orando agreed that he knew Lincoln. At the second trial he denied that he knew him. Mr Frater made a good deal of this inconsistency in cross-examination at the second trial. Their Lordships consider that the question of whether the inconsistencies cast doubt upon Orando's credibility or were something which might be expected of a young child trying to recall what had happened on such a traumatic occasion was very fairly left to the jury in the summing up. The jury obviously did not think that it affected his veracity.
Secondly, Mr Birnbaum complained that the police investigation had been incompetent and inadequate. Other children had been present in the house but only Orando was called. He had not been asked to give a description of the killer or make a statement. DC Nelson should not have waited until after the appellant had been arrested before taking statements from Orando and his grandmother. The police had also taken far too long to find the appellant and the delay had prejudiced his defence.
None of these matters was put to DC Nelson or otherwise investigated at the trial. The police may have had perfectly good explanations; for example, apart from Orando's half-sister, all the other children in the house were even younger than he.
Thirdly, the appellant says he was particularly prejudiced by the delay in charging him because it weakened his alibi, which was that he had been at the house of a woman named Alma Seymour. Ms Seymour had known him for some years because he would come to her neighbourhood on Sunday mornings to sell calaloo. She would ask him into the house and occasionally give him clothes and money. By the time of the first trial, however, she could not remember whether the appellant had been at her house on the day in question. She was therefore not called to give evidence in support of the alibi.
It must however be said that the police can hardly be blamed for not investigating his alleged alibi at an earlier stage. It took some time to emerge. At the identity parade the appellant had given the officer in charge, Sergeant Verta Thomas, a telephone number which she understood to be that of his mother. In fact it was Ms Seymour's number; the Muirheads had no telephone. According to Sgt Thomas at the first trial, she rang the number and spoke to someone who said she would pass the message on to the appellant's mother. The question was not pursued in cross-examination and it was not suggested to Sgt Thomas that the appellant had said that he was with Ms Seymour on the day in question. Nor was it put to DC Nelson. It was only when the appellant gave evidence at the first trial that he mentioned he had been with Ms Seymour. She has made a witness statement saying that she only heard of his arrest when she received a note from him seven months later. At the second trial Sgt Thomas could not remember anything about the telephone number, but again it was not put to her that the appellant had mentioned Ms Seymour as a potential alibi witness. At the second trial DC Nelson said that when he first told the appellant he was being questioned in connection with the murder of Carlos Gunn, he said that he was at the time "at the top of McKoy lane". Again, he there was no suggestion that he had mentioned Ms Seymour.
In their Lordships' view there is no substance in the complaint that the conduct of the police weakened the alibi. It has all the appearance of an afterthought.
Mr Birnbaum next produced a list of criticisms of the way the identification parade was conducted: the appellant did not have a lawyer, he was not told that he could make representations about the parade, the other members did not sufficiently resemble him and so on. By the time of the trial, however, the parade no longer had any evidential significance. It was only held because DC Nelson had understood the appellant to deny that he was the Zaza whom Orando knew. The only purpose in having the parade was to establish that Orando knew the appellant. It had no value in supporting Orando's identification of the appellant as the killer and the judge so instructed the jury: compare Brown and Isaac v The State 2003 UKPC 10 at paragraph 16. By the time of the trial, the appellant admitted that Orando knew him and the evidence of the parade had become unnecessary. Their Lordships would not accept that the parade was open to criticism when one considers that the way it was conducted was in accordance with its limited purpose, but in view of the way the issues emerged at the trial, it does not matter.
Next it is said that the judge should have withdrawn the case from the jury at the end of the case for the prosecution. There is nothing in this point. There was plainly evidence upon which a jury could reasonably convict and counsel for the defence rightly made no such application.
Mr Birnbaum made a number of criticisms of the directions...
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