Donald Phipps v (1) Director of Public Prosecutions (2) Attorney General of Jamaica

Facts

The appellant (P) appealed against a decision of the Court of Appeal of Jamaica upholding his conviction for the murder of two men.

By the end of the trial, the essential facts of the murders were not seriously in doubt. The main issue was whether P had anything to do with them. The jury was faced with a conflict between, on the one hand, three witnesses for the prosecution, based on their alleged telephone conversations with P at or about the time of the murders, and, on the other, an unsworn statement of P himself, which was supported by the sworn evidence of a witness (F). F claimed to have been a victim of the shootings which led to the killings but said that P had not been involved. F had been arrested in the course of the trial. When he gave evidence, he was escorted into court by a police officer who, in full view of the jury, brought him up from the lock-ups into court, holding him by the waist. Thus, it was said, he was "displayed before the jury as a prisoner in the hands of the police". When directing the jury, the judge said that "this bit of information about how he was brought into court ought not to affect in any way shape or form what you have to decide, and that is to assess the evidence of [F] fairly and impartially. It should not be used against him in any way at all".

P argued, among other things, that (1) the Court of Appeal had given insufficient weight to the central status of F's evidence in the defence case; the effect of what happened when he was brought into court was to undermine his credibility in the eyes of the jury before he had even begun his evidence, and no direction by the judge could cure the inevitable and overwhelming prejudice so caused; (2) in respect of the prosecution case that three witnesses claimed to have recognised P's voice when he made incriminating comments over the telephone, the judge's directions were inadequate.

Held

(1) It was, of course, the judge's duty to ensure that evidence was presented as fairly and impartially as possible. Where irregularities occurred, it was his responsibility to consider their significance in the context of the trial as a whole and take appropriate action. In most cases, the giving of a suitable warning to the jury would be sufficient to ensure that no material prejudice resulted. That was what the judge did in this case. P's counsel was unable to refer to any authority which supported the proposition that an irregularity such as this required the trial to be abandoned (see para.20 of judgment). (2) The judge could hardly have done more to bring to the jury's attention the need for caution in considering the voice-recognition evidence. Although he did not address in terms the possibility that one or more of the witnesses had been influenced by the identification made by the others, rather than forming an independent view, that was merely one aspect of the process of considering the witnesses individually, on which the jury were directed in meticulous detail (paras 27-28).

Appeal dismissed.

Comment

The judge in a murder trial had given adequate directions to the jury on voice-recognition evidence relied on by the prosecution and on an irregularity whereby the main defence witness had been presented to the court as a serving prisoner.

Members