Following is the conclusion 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 good character
31. As the Board has explained, evidence was led from Mrs Forrester as to the appellant's good character. The judge reminded the jury of this evidence, and directed them that good character was relevant to their assessment of the credibility of the appellant's evidence:
"Now, in deciding whether the prosecution has made you sure of the defendant's guilt you must give weight to good character. You have heard that she is a legal secretary, and that she has attained the age of 40 having committed any offence (sic). Given that weight, as with any person of good character, it supports her case that she is telling the truth."
32. This direction was criticised on the basis that it did not refer to the bearing of good character upon the likelihood of the appellant's having committed the offence charged: in this case, the brutal murder of an employer for whom she had worked for 17 years and with whom, according to the evidence, she was on friendly terms. The Court of Appeal rejected that criticism on the ground that the judge had previously reminded the jury of Mrs Forrester's evidence that the appellant's reputation was not that of a person
given to violence. That was, however, the evidence of a witness, rather than a direction underpinned by the authority of the judge's office, and it related to reputation, not propensity.
33. More importantly, in a case in which the appellant's credibility was of central importance, the effect of the direction was undermined by repeated comments, almost sarcastic in tone, referring to the appellant's loyal service. Three passages will suffice to
convey the flavour of these comments. The first is concerned with the appellant's evidence that she ran to the lunch room when she heard screaming:
"She is at the photocopier when Mrs Playfair screams the first scream - she is an employer who is good to her, she is the good friend of her employer, 17 years of loyal work and she does not look."
The second passage is concerned with the appellant's evidence that, when she saw the deceased bleeding, she went to the balcony to fetch Mrs Grier, as she was the only person who had a car. The judge told the jury: "Mrs Playfair is seen in the office. She is holding her neck with one hand and she is saying to this loyal employee, this is the evidence of the loyal employee, she is making a gesture to open the door and what does this loyal employee do, she goes past her."
The third passage concerns an answer the appellant gave in cross-examination: "You know you have to look at how she answered the questions you know. You heard her when crown counsel said hospital or doctor, she said hospital, or doctor, same difference. Remember these are the things you have to look at. These are the things you look at. I note them in my notebook; you remember them. These are the things, same difference, that is how she talks about her employer of 17 years, who she said helped her to
buy a Datsun motorcar, that is her evidence, Madam Foreman and members of the jury, it is a matter for you."
34. These comments (and others of a similar tenor) were liable to undermine the character of the appellant in the eyes of the jury. The implication, in effect, was that the appellant's behaviour, and her evidence, were not consistent with her claim to be a loyal
employee or good friend of the deceased.
The summing-up of the evidence
35. The judge's summing-up was interspersed with comments upon the evidence. That is perfectly appropriate in itself, but it is important that the comments should be impartial and based upon the evidence. In the present case, however, some of the comments appear to the Board to have fallen short of that requirement. The Board has already noted some examples: the comments upon Mrs Richards' evidence that she had reported her identification of Williams at the time, and the repeated references, almost sarcastic in
tone, to the appellant's loyalty to the deceased.
36. The judge also introduced issues, in her comments upon the evidence, which had no basis in the evidence. It will suffice to mention the most egregious example. It concerns the appellant's evidence that the deceased had lent her money to buy a car. In
that regard, the judge stated:
"She agreed that her employer assisted her to buy a Datsun motor car. You remember what the getaway car was. Her employer helped to buy her a motor car, that's the evidence, that's the evidence, Madam Foreman and members of the jury, that her employer helped her to buy a car and it was put to her, a Datsun motor car and she said yes."
It was no part of the Crown case that the taxi driven by Ricketts was the appellant's car, and there was no evidence to support that suggestion. At the conclusion of her directions, the judge was invited by the Crown to correct the suggestion that there was a connection between the taxi and the car owned by the appellant. The judge, however, declined to do so.
37. Having read and re-read the transcript of the summing-up, the Board is unable to avoid the conclusion that the directions failed to maintain a fair balance between the appellant and the Crown. Collectively, the comments of the trial judge resulted in a summing-up which was weighted against the appellant. The Board is also satisfied that the summing-up introduced issues adverse to the appellant which did not form part of the Crown's case against her, the most serious of which was the suggestion that she had provided the murderers with their getaway vehicle.
38. For the foregoing reasons, the Board has concluded that the directions to the jury in respect of the case against the appellant were deficient in omitting to direct the jury upon the matters relevant to their assessment of the identification evidence given by Mrs
Richards, and in omitting to direct the jury as to the relevance of the appellant's good character to her propensity to be a participant in murder. The Board also considers that the summing-up of the evidence lacked the necessary balance and introduced material
which was prejudicial to the appellant. There were weighty issues to be considered and the appellant was entitled to have impartial directions given to the jury about them. The cumulative effect of these deficiencies is that the defence case was not put before the jury in a fair and balanced way.
Contrary to the submission of the respondent, the Board finds it impossible to conclude that if the jury had been properly directed in relation to these matters the appellant was nevertheless bound to have been convicted. It is unnecessary in the circumstances to examine the other matters raised in the grounds of appeal. Those which the Board has discussed are sufficient in themselves to render the appellant's conviction unsafe.
39. The Board will humbly advise Her Majesty that the appeal should be allowed. Before determining the terms of the appropriate order which the Board should advise Her Majesty to make to give effect to this conclusion, the Board invites written submissions
on the question whether there should be a remit to the Court of Appeal to consider whether a retrial should be ordered, and on the question of costs, within 28 days. If the prosecution does seek a retrial, the Board invites it to indicate in broad terms upon what
evidential basis, bearing in mind the Board's conclusions on this appeal.