Phillip Mckenzie v The Queen

Facts

The appellant (M) appealed against a decision of the Court of Appeal (Jamaica) that his conviction for murder was safe.

The victim had been shot dead whilst swimming in a river. His murder was witnessed by a woman (C) and her six-year-old nephew (R). C had known M for over eight years. She gave evidence that she saw him fire the fatal shots. Her evidence was supported by unsworn evidence from R. M admitted being at the river, but denied murder. After the murder he moved to a different town. During his trial he gave an unsworn statement from the dock and asserted that he had seen two young men at the river whom he knew, and had run away because he was in fear of his life. He also asserted that C had falsely accused him because there was bad feeling between their families. C admitted that 15 years earlier there had been an incident between R's father and M's brother, but denied any ill-feeling. The Court of Appeal (Jamaica) ruled R's evidence inadmissible but concluded that M's conviction was safe as he would inevitably have been found guilty given C's overwhelming evidence against him.

M submitted that his defence counsel at trial had acted incompetently by: allowing him to make an unsworn statement from the dock instead of advising him to give sworn evidence, failing to adduce the contents of his police interview and failing to object to R's evidence being given in violation of the Juveniles Act (Jamaica) s.54.

Held

(1) M's counsel stated that he told M if he gave sworn evidence he would be liable to cross-examination, whereas if he gave an unsworn statement no question could be asked of him. Given that seven years had elapsed since M's trial and the time when his counsel was asked for his recollection of it, there was no good reason to doubt that his counsel had followed his usual practice and advised M of the consequences of giving sworn evidence as against making an unsworn statement. M's argument that his counsel could only have properly advised him to give sworn evidence was rejected. Had M been subjected to cross-examination, his defence could well have been exposed as even more unconvincing than it had appeared to the jury (see para.12(1) of judgment). (2) In M's police statement he had mentioned passing two youths, but there was no hint or suggestion that the youths might have had something to do with the killing, as he later asserted in his unsworn statement at trial. Furthermore, when asked why he had run away he told them that he left because his sister told him to, an answer wholly contrary to his unsworn statement at trial that he was afraid to tell the police the names of the two youths. Adducing the evidence of M's police interview would have done him more harm than good (para.12(3)). (3) It was difficult to see how M's position would have been improved had the matter of R's evidence been properly dealt with at trial. R's evidence might well have been properly admitted in line with s.54 so that M would not now have the benefit of the Court of Appeal's ruling that it had to be disregarded (para.12(4)). (4) Standing back from the detail of the case, it was hardly surprising that the jury were so clear that M was guilty. The suggestion that C, who no-one doubted knew perfectly well who the killer was, would on the spur of the moment falsely accuse M of murder merely because of some past ill-feeling between their families was little short of absurd. M's own explanation for his behaviour throughout could hardly have been less convincing (para.13).

Appeal dismissed.

Comment

The Privy Council dismissed an appeal from the Court of Appeal (Jamaica) against a conviction for murder where there was no evidence that the appellant's counsel had acted negligently and where the appellant's assertion of innocence was unconvincing in the face of the evidence.

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