Peter Stewart v The Queen (Jamaica)

A formal identification parade is unnecessary where a witness has longstanding familiarity with the accused and recognition is not genuinely disputed. A subsequent pointing-out in the dock may then be a formality.

Failure by counsel to raise an accused’s good character may amount to incompetence, but the trial judge is not at fault for omitting a direction when the defence did not raise the issue. The appellate question is whether the jury would inevitably have convicted. In an unsworn dock-statement case, the credibility limb may be less helpful and should be balanced by guidance on the weight of unsworn evidence.

The appellant was convicted of murder after a trial before the Home Circuit Court in Jamaica. The prosecution’s principal witness had known him and members of his family for many years. She identified him to the police and at a preliminary inquiry, but no identification parade was held. At trial, she pointed to him in the dock.

The appellant also argued that his trial was unfair because counsel had failed to raise his previous good character, with the result that no good-character direction was given. The Court of Appeal of Jamaica dismissed the appeal against conviction but varied the sentence. On special leave, the Privy Council considered whether the absence of an identification parade and the failure to give a good-character direction occasioned a miscarriage of justice.

1. Identification. Lord Brown, delivering the judgment of the Board, held that this was not properly a dock-identification case. The witness had known the appellant, his mother and his brother for many years. She had identified the appellant before trial and had named him throughout her evidence. Her pointing to him when asked whether she could see him in court was a formality. Applying the approach discussed in Ronald John v The State [2009] UKPC 12, an identification parade would have been pointless in circumstances where recognition was not in issue and the appellant had never suggested that the witness was unable to recognise him.
2. Good character. The Board assumed that the appellant was of entirely good character. Counsel’s failure to elicit that fact was attributed to incompetence, and the prevailing practice relied on by counsel did not justify the omission. The law on good-character directions had already been made clear in authorities including Sealey and Headley v the State [2002] UKPC 52.
3. Because the defence had not raised good character at trial, the judge could not be criticised for failing to give the direction. There was no material non-direction and no issue concerning the proviso. The applicable question was whether the failure caused an unfair trial resulting in a miscarriage of justice, namely whether the Board could be satisfied that the jury would necessarily have reached the same verdict had a full direction been given. The principles in Thompson v The Queen [1998] AC 811 and Barrow v The State [1998] AC 846 were followed.
4. The credibility limb of a good-character direction is likely to be less helpful where the accused makes an unsworn statement from the dock rather than giving sworn evidence. If such a direction is given, it should be balanced by guidance on the weight of the unsworn statement and the possible significance of the accused’s decision not to undergo cross-examination, consistently with the guidance in DPP v Walker [1974] 1 WLR 1090.
5. This was an overwhelmingly strong recognition case. The witness had no apparent reason to falsely identify the appellant, and his unsworn statement did little to answer her evidence. The jury would inevitably have convicted even with a full good-character direction. The Board therefore advised that the appeal be dismissed.

• Privy Council: On special leave, the Board dismissed the appeal against conviction and advised that the appeal should be dismissed.
• Court of Appeal of Jamaica: On 21 November 2005, the court dismissed the appeal against conviction but allowed the sentence appeal by substituting 30 years for 40 years as the period of non-eligibility for parole.
• Home Circuit Court: The appellant was convicted of murder on 12 May 2003 and sentenced on 16 May 2003 to life imprisonment without eligibility for parole for 40 years.