West Indian Reports/Volume 49 /Milton (Audley) v R – (1996) 49 WIR 306
(1996) 49 WIR 306
Milton (Audley) v R
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
LORD GOFF OF CHIEVELEY, LORD JAUNCEY OF TULLICHETTLE, LORD LLOYD OF BERWICK, LORD HOFFMANN AND LORD COOKE OF THORNDON
24 JUNE, 9 JULY 1996
¬†Criminal evidence – Prosecution evidence – Disclosure to defence – Statements by crucial prosecution witnesses not disclosed to defence – Significant discrepancies between evidence in court and statements – Discrepancies not brought to attention of defence – Conviction based on evidence quashed
At the trial of the appellant for murder, two witnesses gave evidence on behalf of the prosecution which was substantially in accordance with evidence which they had given at the preliminary hearing. Both witnesses had previously made statements to the police which had not been disclosed to the defence; the oral evidence of the witnesses was at variance with those statements. The appellant was convicted and his appeal against conviction was dismissed by the Court of Appeal. On his appeal to the Privy Council, his advisers became aware for the first time of the existence of the statements which the witnesses had made to the police and their contents.
Held, advising that the appeal should be allowed, that there were serious discrepancies between the statements and the evidence given at the trial by the witnesses; the statements ought to have been shown to the defence at or before the preliminary hearing.
Berry v R (1992) 41 WIR 244 followed.
Case referred to in the reasons of the Board
Berry v R (1992) 41 WIR 244,  2 AC 364,  3 All ER 881,  3 WLR 153, PC.
Audley Milton appealed with special leave to the Judicial Committee of the Privy Council (appeal 48 of 1995) against the dismissal by the Court
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of Appeal of Jamaica of his appeal against his conviction for murder at the Manchester circuit court, Mandeville, on 27 October 1989. The Board stated on 24 June 1996 that it would advise that the appeal be allowed, but reserved its reasons. The facts are set out in the reasons of the Board delivered by Lord Lloyd of Berwick.
Edward Fitzgerald QC and Charles Bott (instructed by Clifford Chance) for the appellant.
James Guthrie QC and Glen Andrade QC, Director of Public Prosecutions (instructed by Charles Russell) for the Crown.
Their lordships reserved their reasons.
9 July 1996. The following judgment was delivered.
Lord Lloyd of Berwick delivered the reasons of the Board. On 24 June 1996 their lordships indicated that they would humbly advise Her Majesty to allow the appeal and quash the appellant’s conviction. They now give their reasons.
On 27 October 1989 the appellant, Audley Milton, was convicted in the Manchester circuit court at Mandeville, Jamaica, of the murder of Desmond Thompson. The case for the prosecution depended on the evidence of two witnesses, Edward Anderson and Clive Gayle.
Anderson gave evidence that he saw Thompson being attacked by three men, each armed with a weapon. He recognised one of the men as the appellant. He was about eighteen feet away at the time. He went on to say that it was the appellant who stabbed Thompson with a ratchet knife. He demonstrated in the witness-box the way in which the wound had been inflicted. Thompson staggered into Anderson’s shop, bleeding profusely. According to Anderson he said ‘look how Rat [the name by which the appellant was known] them chopped mi up’.
Gayle gave evidence that he saw the incident, while standing outside his shop on the other side of the square. A group of about six men, including the appellant, approached Thompson. He saw the fight, but he did not see anyone with a knife. He was asked in cross-examination whether he saw Thompson with a machete. He replied that he did not.
The question was relevant, because the defence case was that Thompson had attacked the appellant with a machete, and that the appellant received a severe injury to his right hand while defending himself. The injury which was described by the doctor as ‘life threatening’ caused the appellant to faint. He would not have been able to use his right hand thereafter.
The evidence given by Anderson and Gayle at the trial was substantially in accordance with the evidence which they had given at a preliminary hearing in August 1989.
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There was an appeal to the Court of Appeal in Jamaica. The principal ground of appeal was that the judge had not dealt fairly with the defence case. The Court of Appeal dismissed the appeal in July 1990.
In the course of preparing the appellant’s petition for special leave to appeal, Messrs Clifford Chance became aware that there might have been a previous written statement by Gayle which had not been disclosed to the defence. Accordingly, they wrote to Messrs Charles Russell on 4 August 1994 asking for copies of any statements which had not been disclosed. Messrs Charles Russell replied promptly that they would make inquiries. After a long delay, it emerged that the police had taken two previous statements, one from Anderson and one from Gayle. At first, it was maintained on instructions from the Director of Public Prosecutions that there were no discrepancies between these statements and the evidence given at the trial, and that therefore there was no duty ‘then or now’ to disclose the statements: see Messrs Charles Russell’s letter of 27 March 1995. But, as soon as legible copies of the statements had been obtained, it became obvious that there were serious discrepancies in respect of both statements.
Thus in Anderson’s case there was no mention of his having seen the appellant stab Thompson. Nor was there any mention of Thompson having said ‘look how Rat them chopped mi up’. As for Gayle, his statement reads in part:
‘Desmond who had a machete started swinging the machete at the men who were blocking it with stick. One of the men cried “Him chop me”. This was the first time anybody spoke. All of the men rushed in and the machete fell from Desmond’s hand, one of the men took up the machete and they all attacked Desmond more viciously and rained blows and chops on him.’
This is the exact opposite of what Gayle said at the trial, when asked whether he had seen Thompson with a machete. It is also consistent with the appellant’s defence that, after receiving an injury to his hand, he fainted, and took no further part in the incident.
It is unnecessary for their lordships to review the law and practice relating to prosecution disclosure in Jamaica, since this has been done very recently by the Board in Berry v R (1992) 41 WIR 244. In the light of the cases there cited, there can be no doubt that both statements should have been disclosed to the defence at or before the preliminary hearing; and Mr Guthrie does not seek to argue otherwise. Nor has there been any explanation from the Director of Public Prosecutions why there was so much delay in making the statements available, after they had been requested by Messrs Clifford Chance. It goes without saying that no blame attaches to Messrs Charles Russell.
Although the disclosure issue has now been conceded in a supplementary case filed on behalf of the Crown, Mr Guthrie submitted,
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with diffidence, that even if the statements had been disclosed, it would have made no difference. For on the way the case was run the defence did not seek to challenge the evidence given by Anderson and Gayle. There had therefore been no miscarriage of justice.
But if the statements had been made available, the case might well have been run differently; indeed, almost certainly would have been run differently. Anderson’s unchallenged evidence that he actually saw the wound being inflicted must have had a powerful effect on the jury. The point was mentioned more than once by the judge in his summing-up. But that evidence would have been undermined, or at least weakened, if it could have been shown that Anderson never mentioned having seen the stabbing in his initial statement to the police. Similarly, the defence case would have been greatly strengthened by Gayle’s statement that he saw the deceased with a machete in his hand, which he subsequently dropped when attacked. Their lordships do not accept the submission that the disclosure of the statements would have made no difference. On the contrary, the verdict of the jury might well have been affected.
Mr Guthrie also argued that it would be open to the Board to substitute a verdict of manslaughter on the ground that the appellant was taking part in an unlawful assault in the course of which Thompson met his death, even though the appellant had by then been incapacitated. But the case was never argued on that basis by the prosecution at the trial, and there is insufficient material on which to substitute a verdict of manslaughter at this stage. Alternatively, it was suggested that the case might be remitted with an order for retrial. But having regard to the course which the case has taken, and the time that has elapsed since the appellant’s conviction, their lordships do not regard an order for retrial as appropriate.
For these reasons their lordships will humbly advise Her Majesty, as already indicated, that the appeal should be allowed and the conviction quashed.
Advice that appeal be allowed and conviction quashed.