Lescene Edwards v The Queen (Jamaica)

On a criminal appeal, credible fresh evidence should generally be admitted where it could not reasonably have been obtained for trial and may affect the safety of the conviction. Once admitted, the appellate court must assess the conviction on the evidence as a whole. Expert evidence showing that the prosecution hypothesis is near-impossible, and that an alternative hypothesis is far more likely, can make a conviction unsafe.

A trial judge must give a fair and balanced outline of both cases, identify major discrepancies, and explain how the jury should deal with them. Repeatedly stating the defence position is not enough. Delay alone does not make a trial unfair, but actual prejudice from missing evidence must be assessed. The proviso to section 14(1) of Judicature (Appellate Jurisdiction) Act cannot save a conviction where a substantial miscarriage of justice occurred.

Lescene Edwards v The Queen (Jamaica) arose from a murder conviction entered in 2013 after a ten-year delay between the incident and trial. The Court of Appeal of Jamaica dismissed the appeal against conviction in January 2018, but reduced the minimum custodial term from 35 years to 20 years.

Final leave to appeal was granted on the constitutional delay issue, and permission was later granted on further grounds, including the admission of fresh expert evidence. The Privy Council considered whether the new forensic reports should be admitted, whether the conviction was safe, whether the trial judge’s summing-up was unbalanced, and whether delay or missing evidence caused unfairness. It also considered the conceded breach of the right to a fair trial within a reasonable time.

1. Appeal allowed and conviction quashed. The Board admitted three fresh expert reports under the sequential approach in Lundy v The Queen [2013] UKPC 28; [2014] 2 NZLR 273. The evidence was credible and fresh because independent experts were unavailable in Jamaica, public funding was unavailable, and the defence could afford only one expert at trial. Its admission could significantly affect the safety of the conviction.
2. Once fresh evidence is admitted, the question is whether, taking the evidence as a whole, the conviction is safe. That approach applies whether the ordinary appeal test is whether the verdict was unreasonable or whether the conviction is safe, as confirmed by Stafford v Director of Public Prosecutions [1974] AC 878, R v Pendleton [2001] UKHL 66; [2002] 1 WLR 72, and Dial v Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660.
3. The fresh ballistic and blood-spatter evidence indicated that the deceased was seated against the closed bathroom door when shot. It left no satisfactory explanation for how the appellant could have carried out the prosecution’s murder hypothesis in the confined bathroom, moved the body, and emerged without blood on himself, his clothing, or elsewhere outside the bathroom. The evidence that no gunshot residue was found on the deceased’s hands was not indicative of guilt and was highly significant to the prosecution case. The conviction was plainly unsafe.
4. The restrictive approach in R v Joseph Lao (1973) 12 JLR 1238 and R v Pope [2012] EWCA Crim 2241; [2013] 1 Cr App R 21 applies where the sole ground is that a jury verdict was unreasonable or against the weight of the evidence. It does not govern appeals based on fresh evidence, misdirection, or material trial irregularity. Without the fresh evidence and on the unreasonable-verdict ground alone, the Board would have upheld the conviction.
5. A summing-up must give a fair and balanced outline of the prosecution and defence cases. The judge gave a powerful summary of the prosecution’s case but no equivalent summary of the defence case. Repeated statements that the defence case was suicide did not properly contrast the two theories. The handwriting evidence was admissible, but clear warnings were required about the flawed sampling methodology. If the interview records were admitted unredacted, the jury should also have been warned that allegations contained in the questions were not evidence.
6. Delay alone did not make the trial unfair. The court had to assess the actual prejudice caused by missing evidence and unavailable witnesses, applying the guidance in R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 and R v RD [2013] EWCA Crim 1592. The lost nightdress evidence was too speculative to establish unfairness. The substitute pathologist could adequately address the non-controversial post-mortem evidence, and the discrepancy concerning Sergeant Brown’s evidence could be put to the jury.
7. The proviso to section 14(1) of Judicature (Appellate Jurisdiction) Act could not save the conviction because a substantial miscarriage of justice had occurred. The respondent conceded that a retrial would be inappropriate after more than 18 years. The Board accepted that the ten-year delay breached section 16 of the Constitution of Jamaica and did not oppose a declaration to that effect.

1. Privy Council. The Board allowed the appeal and quashed the murder conviction. It accepted the conceded breach of the constitutional right to a fair trial within a reasonable time.
2. Court of Appeal of Jamaica. On 19 January 2018 the court dismissed the appeal against conviction, but reduced the minimum custodial term from 35 years to 20 years. Final leave to appeal was granted on 1 July 2019 pursuant to section 110 of the Constitution of Jamaica; further grounds were permitted on 28 April 2021.
3. Trial court. The appellant was convicted of murder on 31 October 2013 and sentenced on 5 November 2013 to life imprisonment with a minimum term of 35 years.