Phillip v The Director of Public Prosecutions

Evidence showing only a defendant’s general propensity for violence is ordinarily inadmissible absent a statutory exception. Evidence of persistent hostility and violence towards the particular victim is different. It may be admitted to prove motive and to support identification of the killer. Admission requires a demonstrated justification beyond describing the evidence as background or as relevant to credibility. The relevance must be tied to a proper issue, such as identity, intention or provocation. The judgment also confirms that permissible forensic choices by defence counsel do not amount to incompetence merely because another approach was possible. Fresh evidence must be apparently credible and accompanied by an adequate explanation for its absence at trial.

The appellant was convicted of murdering his estranged wife in November 2008. The Court of Appeal of the Eastern Caribbean Supreme Court dismissed his appeal against conviction on 15 March 2012. Before the Board, leave had been granted on three grounds, and the appellant sought to raise further grounds and adduce fresh evidence.

The principal issue was whether evidence of the appellant’s previous hostility and violence towards the deceased was inadmissible propensity evidence. Other issues concerned eyewitness evidence, alleged incompetence by trial counsel, jury directions, and fresh evidence said to support accidental DNA contamination and an alibi.

Disposition. The Board refused to admit the fresh evidence and advised that the appeal be dismissed.

1. Prior violence and hostility. In the absence of a statutory regime such as sections 98–113 of the Criminal Justice Act 2003, evidence which merely shows general violence is ordinarily inadmissible. The governing approach in Makin v Attorney General for New South Wales [1894] AC 57, as explained in Myers Cox and Brangman v The Queen [2015] UKPC 40; [2016] AC 314, requires justification beyond propensity.
2. The evidence here showed persistent ill-will and violence directed towards the deceased. It was therefore admissible to demonstrate motive and to support the case that the appellant, rather than a stranger, was the killer. The principle was supported by R v Ball and Ball [1911] AC 47. The evidence was not rendered inadmissible by the unfair-prejudice principle in Noor Mohammed v The King [1949] AC 182, or by section 123 of the Evidence Act No 30 of 2011.
3. Calling evidence “background” or saying that it went to credibility did not establish admissibility. Its proper relevance had to be demonstrated. General violence, extramarital affairs and general untruthfulness would not suffice without a further connection to an issue in the case. The prosecution’s and judge’s handling of the evidence was imperfect, but the conviction was not thereby rendered unsafe.
4. The defence approach to the eyewitness evidence was a permissible forensic choice. The reliability challenge was squarely before the jury, and the failure to pursue honest mistake did not approach the flagrant incompetence capable of making a conviction unsafe. The complaint about a good-character direction was not pursued; the Board nevertheless noted, referring to R v Hunter (Nigel) [2015] EWCA Crim 631; [2015] 1 WLR 5367, that such directions should be realistic rather than formulaic.
5. The proposed fresh evidence satisfied neither the requirement of apparent credibility nor the requirement of an adequate explanation for its absence at trial. The expert evidence on DNA contamination was hypothetical and could not assist once the sisters’ evidence was rejected. Contamination had already been explored at trial, further expert evidence could have been obtained earlier, and the conviction did not depend solely on DNA evidence.

1. Privy Council: The further appeal was dismissed and the Board advised accordingly: [2017] UKPC 14.
2. Court of Appeal of the Eastern Caribbean Supreme Court (St Christopher and Nevis): The appellant’s appeal against conviction was dismissed on 15 March 2012. No citation is stated in the judgment.
3. Trial court: The appellant was convicted of murder in November 2008.