Anneth Livingston and Ramone Drysdale v The Queen (Jamaica)

Identification evidence that is crucial to the prosecution case requires a separate, case-specific Turnbull direction. A direction given for a different identification does not suffice where the identification in issue raises distinct reliability concerns. Where an accused relies on good character and credibility is central, the jury must be directed on both its relevance to credibility and its relevance to propensity to commit the offence. A summing-up must be impartial and based on the evidence. Adverse or sarcastic comments, or the introduction of prejudicial matters outside the prosecution case, may cumulatively deprive the accused of a fair trial and render the conviction unsafe.

Anneth Livingston was convicted in Jamaica of murdering her employer in a joint enterprise involving Ramone Drysdale, Ashley Ricketts and an alleged fourth participant, Dwayne Williams. The Court of Appeal of Jamaica refused Livingston’s and Drysdale’s applications for leave to appeal against conviction, but reduced their minimum terms. Ricketts’s murder conviction was quashed and a manslaughter conviction substituted.

Livingston obtained permission to appeal to Her Majesty in Council. Drysdale’s application for special leave was refused. Livingston challenged the identification directions, the good character direction, the balance of the summing-up and the introduction of material adverse to her. The central issue was whether these deficiencies rendered her conviction unsafe.

The Board, in the judgment of Lord Reed, allowed Livingston’s appeal. It held that the conviction was unsafe because the directions on identification and good character were deficient and the summing-up was materially unbalanced.

1. Identification. Mrs Richards’s evidence identifying Williams as a person who had previously visited the office was crucial to the case against Livingston. A Turnbull direction was essential in relation to that evidence. The earlier direction concerning Mrs Richards’s identification of Drysdale did not suffice. The jury needed a direction tailored to the different circumstances, including the five-month delay, the nature of the earlier observation and the intervening identification parade.
2. Good character. The direction referred to the relevance of good character to the credibility of Livingston’s evidence. It failed to address its relevance to the likelihood or propensity of her having committed the murder. Evidence from a character witness about reputation did not replace an appropriate judicial direction on propensity.
3. Summing-up. Although judicial comment on evidence is permissible, it must be impartial and based on the evidence. The judge made comments which diminished legitimate defence points, repeatedly referred to Livingston’s loyalty in a sarcastic manner, and suggested a connection between her car and the murderers’ getaway vehicle which had no evidential basis and was not part of the Crown’s case. Collectively, the comments weighted the summing-up against Livingston.
4. Disposition. The cumulative deficiencies meant that the defence case had not been put before the jury fairly and evenly. The Board could not conclude that a properly directed jury would inevitably have convicted. The other grounds of appeal therefore did not need to be examined. The Board invited written submissions on remitting the matter to the Court of Appeal to consider a retrial and on costs.

• Court of Appeal of Jamaica: On 31 July 2006, refused Livingston’s and Drysdale’s applications for leave to appeal against conviction, but allowed their sentence appeals and reduced the minimum terms to 35 years. Ricketts’s murder conviction was quashed and manslaughter substituted.
• Privy Council: Livingston obtained permission to appeal to Her Majesty in Council. The Board allowed the appeal. Written submissions were invited on a possible remittal to the Court of Appeal to consider a retrial and on costs.