Omar Grieves and others v The Queen (Jamaica)

A Turnbull direction is not a fixed formula. It must convey the substance and spirit of the safeguards, including the need to draw attention to specific weaknesses in identification evidence and, unless obvious, explain why they may affect reliability. A judge need not identify every argument capable of undermining a witness’s credibility. Where recognition evidence is challenged as fabricated, the jury should ordinarily receive a general warning about honesty and the possibility of mistake; an adapted Turnbull direction is unnecessary only where it would add nothing. Imperfect directions do not require an appellate court to quash convictions where it is positively satisfied that no substantial miscarriage of justice occurred.

The appellants were convicted of murdering Lancelot Todd at a retrial before the Circuit Court Division of the Gun Court in Kingston. The prosecution relied principally on identification evidence from the deceased’s brother and a police officer. Their appeals to the Court of Criminal Appeal of Jamaica were dismissed by a majority, with Cooke JA dissenting.

Before the Privy Council, the appellants challenged the trial judge’s directions concerning discrepancies, the Turnbull warning, inconsistencies between the identification and ballistics evidence, the witnesses’ movements, and an alleged motive for the brother to give false evidence. The central issue was whether the directions were inadequate and, if so, whether they caused a miscarriage of justice.

1. Disposition. The Board dismissed the appeals. Although aspects of the summing-up could properly be criticised, it was positively satisfied that no miscarriage of justice had occurred within section 14(1) of the Judicature (Appellate Jurisdiction) Act.
2. Turnbull directions. The guidance in R v Turnbull [1977] QB 224 does not prescribe a fixed form of words. Following Langford v Dominica [2005] UKPC 20, the question is whether the directions comply with the sense and spirit of the guidance when read as a whole. The omission of the duration of observation from a standard list was not fatal because the judge reminded the jury of the witnesses’ evidence on that matter.
3. Specific weaknesses. The judge must identify specific weaknesses in identification evidence and explain why they may cast doubt on reliability, unless the reason is obvious. A summing-up should analyse the evidence rather than merely repeat it, as explained in Fuller v State (1995) 52 WIR 424. The judge did not adequately analyse the conflict between the ballistics evidence and Todd’s evidence that the fatal shot came from a Mack 11, or the evidence of Todd’s and Reynolds’s movements.
4. The deficiencies did not undermine the convictions. Todd’s initial identification had been made shortly after the killing; his later uncertainty about the firearm was explicable; and the evidence supported two episodes of gunfire. The timing estimate and the evidence of a single volley were minor inconsistencies. The judge was also entitled to direct the jury to disregard Todd’s unsubstantiated reference to the appellants killing his aunt-in-law, since no alleged grudge had been put to him.
5. Where fabrication rather than honest mistake is the principal issue in a recognition case, a general warning about honesty and possible mistake is ordinarily required. The principles stated in Shand v The Queen [1996] 2 Cr App R 204 and reiterated in Aurelio Pop v The Queen [2003] UKPC 40 did not require a different result here.

• Privy Council: [2011] UKPC 39; appeals dismissed and advice given that Her Majesty should dismiss them.
• Court of Criminal Appeal of Jamaica: the appellants’ appeals against conviction were dismissed on 30 July 2004 by a majority; Cooke JA dissented.
• Circuit Court Division of the Gun Court, Kingston: the appellants were convicted of murder at retrial on 21 June 2002. Earlier convictions had been quashed on appeal and a retrial ordered.