Phillip McKenzie v The Queen (Jamaica)

An appeal based on alleged incompetence by trial counsel succeeds only if the conviction is unsafe when the trial evidence and the likely consequences of the proposed alternative are considered as a whole. A defendant’s choice to make an unsworn dock statement is not inherently improper where the options and consequences were explained, particularly if cross-examination might damage the defence. Evidence omitted by counsel need not be introduced where it would probably cause more harm than good. An erroneous admission of a child’s unsworn evidence does not require the conviction to be set aside where the remaining admissible evidence makes guilt inevitable and the appellate proviso is properly applied.

The appellant was convicted of murder in Jamaica after eyewitness evidence from Tiny Chambers and supporting unsworn evidence from her six-year-old nephew, Rohan. He received a life sentence with a recommendation that he serve 35 years before parole.

The Court of Appeal of Jamaica dismissed the appeal against conviction and sentence. It held that Rohan’s evidence had been admitted contrary to section 54 of the Juveniles Act, but applied the proviso because Tiny Chambers’ evidence was overwhelming and a properly acting jury would inevitably have convicted.

On appeal by special leave, the appellant relied on further material alleging incompetence by trial counsel concerning his unsworn statement, character evidence, the police interview and Rohan’s evidence. The central issue was whether those matters made the conviction unsafe.

Appeal dismissed. Lord Brown delivered the judgment of the Board.

1. The Board assessed each alleged failure by reference to the trial as a whole, the evidence actually adduced and the likely effect of the proposed alternative. A step which would probably damage rather than assist the defence could not establish that the conviction was unsafe.
2. The appellant had been advised of the available options and the consequences of giving sworn evidence or making an unsworn statement. He elected to make an unsworn statement. There was no general requirement to advise him to give sworn evidence merely because the case turned substantially on credibility. His statement was full, and the judge directed the jury to consider what he had said. Cross-examination might have exposed weaknesses in the defence. The complaint therefore failed. The Board also regarded counsel’s account as consistent with the approach in Bethel v The State (1998) 55 WIR 394, including the making of a contemporaneous written record of instructions.
3. The later-disclosed previous conviction did not assist the argument concerning family hostility. Introducing it before the jury would likely have caused more harm than good.
4. The police interview did not suggest that the two youths had been involved in the killing and contradicted the appellant’s later explanation for leaving the area. Its admission would likewise have harmed the defence.
5. Section 54 of the Juveniles Act required preliminary questions before Rohan’s unsworn evidence could be admitted. The failure to conduct that inquiry rendered the evidence inadmissible, and the Court of Appeal was correct to disregard it. Nevertheless, the Court of Appeal had properly applied the proviso on the basis of Tiny Chambers’ evidence. No alleged failing rendered the conviction unsafe.

The Board advised that the appeal be dismissed.

• Privy Council — On appeal by special leave, dismissed the appeal against conviction.
• Court of Appeal of Jamaica — Dismissed the appeal against conviction and sentence on 21 July 2005, giving reasons on 3 November 2005. It held that Rohan’s unsworn evidence was inadmissible under section 54 of the Juveniles Act, but applied the proviso because the remaining evidence made conviction inevitable.
• Home Circuit Court, Jamaica — Convicted the appellant of murder on 9 October 2003 and imposed a life sentence, with a recommendation of 35 years before parole eligibility.