Phillip Tillett v The Queen (Belize)

In assessing an appeal based on alleged incompetence of trial counsel, the appellate court asks whether counsel’s conduct undermined the safety of the conviction or created a risk of a grave and substantial miscarriage of justice. A failure to challenge evidence in cross-examination may be improper, but it does not necessarily make a conviction unsafe where the proposed challenge would probably have been rejected and counsel was able to advance the point in final submissions without contradiction. Where evidence of an alleged confession is effectively disowned, is not put before the jury as part of the prosecution case, and is treated at trial as having no evidential role, the judge is not necessarily required to warn the jury to disregard it or discharge the jury.

The appellant, an inmate serving a sentence for manslaughter in Belize, was convicted of murdering a fellow inmate. His appeal concerned two matters not advanced before the Court of Appeal of Belize.

1. Whether trial counsel’s failure to challenge a prosecution witness’s continuous observation of the alleged assailant rendered the conviction unsafe.

2. Whether evidence of an alleged confession was wrongly admitted and, after the witness’s account was discredited in cross-examination, required a jury direction or discharge.

The central questions were whether counsel’s conduct created a real risk of a grave and substantial miscarriage of justice and whether the trial judge was required to take further steps concerning the alleged confession.

The appeal was dismissed. The Board advised Her Majesty accordingly.

1. Trial counsel should have put to the crucial prosecution witness the suggested failure to keep the alleged assailant continuously under observation. It was improper to suggest in final speech that the witness had been distracted without first obtaining the witness’s response. Nevertheless, the omission did not affect the safety of the conviction. The witness had given clear and unequivocal evidence that he observed the relevant inmate throughout the material period, and it was unlikely that he would have accepted the proposed challenge. Counsel’s final submissions raised the possibility of distraction without exposing the defence to contradiction.

2. The judge was entitled to find that the prison officer who gave evidence of the alleged confession was not a person charged with investigating offences or charging offenders for the purposes of the Judges’ Rules. Whether a person has that duty is a question of fact, although it may involve a question of law where the duty depends on construing a statute or other document. No material showed that the judge’s finding was not reasonably open to him.

3. The officer’s oral account of the alleged confession materially differed from his witness statement. After the judge’s questioning, the officer accepted that the statement was correct, and the judge treated the oral confession evidence as no longer standing. The statement itself was not in evidence. The prosecution did not rely on the alleged confession, the judge did not mention it in the summation, and the jury was told that the prosecution case was based entirely on circumstantial evidence.

4. In those circumstances, the judge was entitled to conclude that a warning to disregard the alleged confession was unnecessary. A direction might have drawn attention to evidence which the jury was unlikely to remember or regard as significant. The suggestion that the jury should have been discharged was also rejected, particularly since no application for discharge had been made.

• Privy Council: The appeal from the Court of Appeal of Belize was dismissed, and the Board advised Her Majesty accordingly.