Following is part three of Monday's judgement by the United Kingdom Privy Council which overturned the conviction of Annette Livingston in the murder of attorney Shirley Playfair.
The present appeal
21. The Court of Appeal granted leave to appeal on the following grounds:
a. Is it permissible for a witness at trial of three accused for murder to give evidence of the conduct and identification of a fourth accused who was not before the court?
b. Is it permissible for another witness at trial to testify about the appellant's previous association with the fourth accused who is not before the court and was only identified at committal proceedings?
c. If the answer to (a) and (b) is yes, would failure to give the jury a Turnbull direction on identification for both (a) and (b) cause a grave miscarriage of justice?
Would leading evidence at trial which was in the possession of the prosecution showing the appellant's previous association with an accused who is not before the court and who was only identified at committal proceedings without disclosing that evidence to the defence cause a grave miscarriage of justice?
3. Good Character
Where an accused gives evidence of good character and calls a witness in support, would a failure to give the jury appropriate directions on the trustworthiness and propensity of the accused amount to a grave miscarriage of justice?
22. The Board observes that it is doubtful whether leave ought to have been granted, since the decision of the Court of Appeal does not appear to be one which "involves a point of law of exceptional public importance": Judicature (Appellate Jurisdiction) Act 1962, section 35. The Court of Appeal had been invited to grant leave on the ground that the appeal involved points of law of general public importance; but that is not the correct test. There is, however, no cross-appeal on this ground, and in any event the Board would have advised Her Majesty, in the particular circumstances of this case (as they will appear), to grant special leave to appeal if that had been necessary.
23. The appellant also sought and was granted permission to argue the following additional grounds:
1. That the summing-up, both in its tone and content, is unbalanced and involves comments which have denied the appellant the fair trial to which she was constitutionally entitled.
2. The Court of Appeal's contention that proper inferences can be drawn leading to proof of her guilt is not sustainable, given the legal difficulties with each piece of evidence from which the inferences can be drawn.
24. Shortly before the hearing of the appeal, the appellant also applied for permission to introduce new evidence, in the form of an affidavit from Mr Townsend. In his affidavit, Mr Townsend stated that he did not recall Mrs Richards indicating to him at the preliminary enquiry that she recognised Williams, and that, if that had happened, he would have given instructions to the police for further statements to be taken and a copy given to the defence. The application to have this evidence received was opposed on behalf of the respondent, on the basis that it had come too late to permit necessary investigations to be made. The Board considered that it was not necessary in the interests of justice that the additional evidence should be admitted.
25. There is considerable overlap between the matters covered by the grounds of appeal. Rather than go through the grounds one by one, it appears to the Board that the principal issues can most conveniently be discussed under three headings: the directions as to identification; the directions as to good character; and the summing-up of the evidence.
(See continuation in your Friday Observer)