Rohan Vidal and Kevin Thompson v The Queen (Jamaica)

In a criminal trial, directions concerning an absent witness’s statement must make clear that the jury cannot rely on it as evidence of guilt. The cumulative effect of the directions may be sufficient; repetition after every reference is unnecessary. The material may nevertheless be considered for a legitimate, limited purpose, such as assessing a challenge to the credibility of the officer who reported it. A good character direction must include its propensity limb where the defendant is of good character, even if the defendant does not give evidence. An appellate court may uphold the conviction under the proviso where satisfied that the jury would necessarily have reached the same verdict and no substantial miscarriage of justice occurred.

The appellants were convicted of murder at a retrial before the Home Circuit Court in Jamaica and sentenced to life imprisonment. Their appeals to the Court of Appeal of Jamaica were dismissed on 7 December 2004. They appealed to the Privy Council by special leave.

The appeals concerned the adequacy of the jury directions. The first issue was whether the judge sufficiently directed the jury regarding evidence of what an absent witness had allegedly told the police. The second, concerning Thompson alone, was whether the omission of the propensity limb from an otherwise required good character direction necessitated the quashing of his conviction.

Lord Dyson delivered the judgment of the Board. The appeals were dismissed.

1. Evidence concerning the absent witness. The judge was entitled to remind the jury of the evidence that a police officer said the absent witness had identified the appellants. Some of that evidence had been elicited in cross-examination as part of the defence case. The cumulative effect of the summing-up made clear that the jury had to decide the case on the evidence given by witnesses before them, could not speculate about the absent witness’s evidence, and could convict only if satisfied by the evidence of the principal eyewitness. A separate warning after each reference was unnecessary.
2. The judge was not required to direct the jury to disregard the absent witness’s statement for every purpose. The jury could consider the evidence for the limited and legitimate purpose of assessing the defence challenge to the police officer’s credibility and competence.
3. Good character. It was accepted that Thompson should have received a direction on the propensity limb as well as the credibility limb. The Board referred to Teeluck and John v The State (Trinidad and Tobago) [2005] UKPC 14, Maye v The Queen (Jamaica) [2008] UKPC 35, and R v Vye, R v Wise and R v Stephenson [1993] 1 WLR 471. The propensity limb should be given to a defendant of good character even where the defendant does not testify.
4. Application of the appellate proviso. The omission was an irregularity, but the Board was in no doubt that the jury would have reached the same verdict. The prosecution case depended on the clear recognition evidence of Miss Notice, her credibility had been tested at length, and the jury reached its verdicts promptly. No substantial miscarriage of justice had occurred. The proviso to section 14(1) of the Judicature (Appellate Jurisdiction) Act was therefore applied, and the appeals were dismissed.

1. Home Circuit Court, Jamaica: Following an earlier conviction and successful appeal, the appellants were retried and unanimously convicted of murder. They were sentenced on 28 November to life imprisonment with hard labour and no possibility of parole for 21 years.
2. Court of Appeal of Jamaica: The appellants’ appeals against conviction were dismissed on 7 December 2004.
3. Privy Council: Appeals by special leave were dismissed.