Donald Phipps v The Director of Public Prosecutions and the Attorney General of Jamaica (Jamaica)

A trial irregularity does not automatically require a conviction to be quashed. The judge must assess its significance in the context of the trial as a whole and take appropriate action; a suitable warning to the jury will usually prevent material prejudice. Voice-recognition evidence is subject to the essential safeguards in R v Turnbull [1977] QB 224, but no fixed form of direction is required. The jury should be directed to consider familiarity, opportunity, the circumstances of recognition, the possibility of honest mistake and each witness individually. A separate warning about contamination or a controlled procedure is not invariably required.

The appellant was convicted of two murders after a trial before Marsh J and a jury in Jamaica. His co-accused was discharged at the close of the prosecution case. The Court of Appeal of Jamaica dismissed his appeal. Before the Privy Council, he challenged alleged prejudice arising from his apparent custody and the police presentation of a defence witness, the adequacy of the directions on voice recognition and murder, and the safety of the verdict. The central issues were whether the irregularities caused material prejudice and whether the jury received adequate safeguards when assessing voice-identification evidence.

Disposition. Lord Carnwath delivered the judgment of the Board, which dismissed the appeal.

1. Procedural irregularities. The judge must ensure that evidence is presented fairly and impartially. If an irregularity occurs, its significance must be assessed in the context of the trial as a whole and appropriate action taken. In most cases, a suitable warning to the jury will prevent material prejudice. The appellant’s possible visibility in custody, while the co-accused was on bail, caused no demonstrated prejudice because the judge directed the jury to decide according to the evidence and without prejudice or bias.
2. Defence witness. The police treatment of Foster, including bringing him into court while apparently under restraint, was unfortunate. However, the judge specifically directed the jury not to allow that circumstance to affect its assessment of Foster’s evidence. The Board rejected the submission that the irregularity required the trial to be abandoned.
3. Voice recognition. The safeguards in R v Turnbull [1977] QB 224 apply in principle to voice recognition. No precise form of words is required if the essential elements of the warning are given, as explained in Shand v The Queen [1996] 1 WLR 67. The directions adequately addressed the need for caution, familiarity with the voice, opportunity and circumstances of hearing it, the possibility of honest mistake and individual assessment of the witnesses.
4. Further safeguards. The absence of a separate direction on contamination was not material because that possibility was encompassed by the direction to assess the witnesses individually. A controlled voice-identification procedure was not shown to be required. Aurelio Pop v R [2003] UKPC 40 was materially different because it involved no full identification direction and unusually vulnerable identification evidence.
5. Alternative offences. It was inappropriate to direct the jury on alternative offences which had not been raised by the defence and for which conviction was unavailable on the indictment. The Board advised Her Majesty that the appeal should be dismissed.

1. Trial before Marsh J and a jury: The appellant was convicted of two murders on 12 April 2006 and sentenced to life imprisonment with a minimum term of 30 years.
2. Court of Appeal of Jamaica: The appeal was heard between 11 and 14 January 2010 and dismissed on 30 July 2010.
3. Privy Council: Final leave to appeal was granted on 26 September 2011. The appeal was dismissed.