Following is part four 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 (cont'd)
The directions as to identification
26. As previously noted, Mrs Richards' evidence that she recognised Williams at the preliminary enquiry, as someone who had met the appellant at the office during the week prior to the murder, was of critical importance. In relation to this evidence, the trial judge directed the jury:
"Defence counsel says, if Mrs Richards saw Williams at Half-Way-Tree, how is it she never saw him at the identification parade, but the Inspector told you that the identification parade was in respect of a murder suspect.
"She never said she saw Williams on the day of the murder. That's not her evidence, you know. And the identification parade, in respect of Williams, is in respect of the murder of Mrs Playfair, so, what you make of that? Mrs Richards only saw one man and she had already identified that man that she said was the accused, Drysdale, so when she goes to court at Half-Way-Tree and she sees Williams, she says to herself, but I remember him and she not only say it to herself, she said it to Crown counsel. She said it to another attorney who is there, but Madam Foreman and members of the jury, you know we are Jamaicans, you know how things go when people don't want to hear you they don't hear you when you are telling them anything, so it's a matter for you. Because she says she told them, nobody pays her any mind.
"And she says to you, I saw him come by to Mrs Livingston the week before the boss was murdered and she tells several people."
At the conclusion of her summing-up, the judge was invited by the Crown to give a warning in respect of Mrs Richards' identification of Williams, but declined to do so.
27. Two aspects of these directions are important. First, the judge makes a number of comments which appear to diminish the significance of legitimate points which had been made on behalf of the defence. Counsel for the appellant had drawn attention to the fact that Mrs Richards had not identified Williams at the identification parade held six days after the murder: a fact which might be thought to weaken the reliability of her purported identification of him, for the first time, five months later.
The judge correctly points out that the purpose of Mrs Richards' attending the identification parade was to identify the murderer, not to identify someone she had seen at the office in the days leading up to the murder; but that might be thought not to be a complete answer to the point made by the defence, since it might equally be said that the purpose of Mrs Richards' attending the preliminary enquiry was to give her deposition, not to identify someone she had seen at the office.
The jury might have thought that a further weakness in Mrs Richards' evidence was the absence of any corroboration of her claim that she had reported her identification of Williams to Crown counsel and other persons present at the preliminary enquiry. The judge, however, produces her own explanation for that: Mrs Richards told these people, but they are Jamaicans; they did not pay attention.
28. Secondly, and more importantly, the judge does not give the jury a Turnbull direction in respect of this evidence. In relation to this matter, the Court of Appeal acknowledged that such a direction was desirable, but concluded that the directions were nonetheless adequate for three reasons. First, a Turnbull direction had already been given in relation to Mrs Richards' identification of Drysdale, and a jury could not have failed to appreciate that such directions were applicable to identification generally.
Secondly, Mrs Richards claimed to have seen Williams at the office for a period of ten minutes, which would be different from observation while an offence was being committed.
Thirdly, the jury had been directed to consider whether they accepted Mrs Richards' evidence in relation to this matter.
29. Notwithstanding the various factors referred to by the Court of Appeal, the Board considers that a Turnbull direction was essential. This evidence formed a crucially important aspect of the case against the appellant. Although, as the Court of Appeal
noted, Mrs Richards claimed that Williams had spent ten minutes in the office, there was nevertheless a question as to whether she could reliably identify a visitor to the office five months after the event, particularly when she had seen Williams on a police line-up
during the intervening period. Equally although, as the Court of Appeal noted, the judge had given the jury detailed directions concerning the need for caution when considering Mrs Richards' evidence as to her identification of Drysdale, that does not appear to the Board to be a complete answer in the circumstances of this case.
30. The Board notes in the first place that that direction had been given at a much earlier stage in the summing-up (in the transcript, some 125 pages earlier), and that many other issues had been dealt with during the intervening period. The judge did not remind
the jury of the direction, or direct them that it applied equally to Mrs Richards' identification of Williams. More importantly, that direction had, quite properly, been tailored to the particular circumstances in which Mrs Richards had seen one of the murderers and, two days later, had identified Drysdale as that person. The judge had correctly and cogently drawn to the attention of the jury the particular factors which might bear upon their assessment of the reliability of that evidence: for example, whether the fact that Mrs Richards had seen the man wringing his knife in the deceased's neck might have imprinted the scene on her memory. A direction tailored to the factors affecting the reliability of Mrs Richards' claimed identification of Williams in the dock at the preliminary enquiry, five months after she claimed to have seen him in the office, was equally necessary. Such a direction would have been materially different in its terms, and would have directed the jury's attention to the specific matters bearing upon the reliability of that identification.
(See continuation in your Saturday Observer)