Avoiding the ironic platitude
In commenting on the accused’s failure to give or to call evidence, the judge observed that much cross-examination of apparently reliable witnesses had included imputations against character that were not supported by evidence. The Board regarded the particular comments here as “ill-chosen and of a nature which should be avoided in a criminal trial” (para 20), and quoted a passage from the summing up which concluded “However, it is [the accused’s] right to have elected to remain silent, as he did, and you cannot hold it against him”, and held (para 19):
“if a judge makes unduly unfavourable remarks about a defendant or witness, which may be prejudicial, they cannot be sufficiently neutralised by resorting to the mantra in the last sentence of the passage quoted: cf Mears v The Queen  1 WLR 818.”
Here, the remarks were held to be insufficiently prejudicial to make the conviction unsafe. Plainly, however, the Board is warning against the recitation of the accused’s right to silence as an attempt to rectify improper comment.
The duty of a court in a criminal appeal
“It is the duty of the court in a criminal appeal to take account of all the grounds which could reasonably be advanced on behalf of an appellant, whether or not they have been sufficiently argued, and their Lordships think that it was desirable that this should have been done.” (para 25)
This point was also made in Charles v R (St Vincent and the Grenadines), blogged 20 July 2007, and not cited in Pitman. The point not argued in the court below in Pitman was whether the alleged joint enterprise may have come to an end before the killings, although the Court of Appeal had allowed the co-accused’s appeal on that basis.
Nevertheless, in Pitman the Board did not consider that there had been inadequate directions on joint enterprise at the trial, and this point was not determinative of the appeal. Some criticism was made, however, of the way the judge had approached the subject in his directions to the jury.
The best perspective on complex directions
In covering the subject of liability on the basis of joint enterprise, the judge had chosen the perspective of how the accused could be guilty. The Board considered (para 25):
“…it would have been preferable if the judge had spelled out in the case of each defendant how it might be said that he did not contemplate the murder of the victims ….”
The judge’s approach was not wrong, but it could have been better. It is quite natural for a judge to focus on ways in which an accused may be guilty, because the question is what the prosecution has to prove. However the judge has to show the jury how to relate points of law to particular facts. This can be done by drawing attention to how the prosecution may fail in its task. The Board made these general remarks applicable to allegations of joint enterprise, concerning how an accused may not be a participant (para 25):
“This could be argued in any case of this nature on several bases, according to the facts of the case: that the joint enterprise never went beyond robbery and that the defendant in question did not foresee that his confederate might go beyond that and commit murder; that when he realised that things were getting out of hand and that his confederate was intending murder, the defendant withdrew from the joint enterprise by a sufficiently clearly evinced dissociation; or that the defendant was no longer part of the joint enterprise, which had earlier come to an end. These are in truth facets of the same issue, whether the defendant was part of a joint enterprise which included as one of its elements the possible murder of another person. That depends on what was agreed, expressly or impliedly, by the defendant, and if a murder takes place it may be outside the parameters of the enterprise in a number of ways, including those specified above. It is desirable that a trial judge should tailor his directions to the evidence, so that the jury have put clearly before them the basis on which to decide if the defendant agreed to the commission of the act with which he is charged.”
The appeal was allowed in Pitman because fresh evidence had been obtained concerning the appellant’s mental capacity. The accused had not had the facilities before trial to obtain this evidence. It potentially had a bearing on several issues, and the case was remitted to the Court of Appeal for those to be considered.
To qualify as “fresh” the evidence must be capable of belief and there must be a reasonable explanation for its not having been called at trial. At para 31 the Board added:
“These factors are not, however, conclusive of the issue of admission of fresh evidence, and an appellate court has the overriding statutory power to admit it if it is in the interest of justice: see Benedetto v The Queen  UKPC 27,  1 WLR 1545, and cf Smalling v The Queen  UKPC 12.”
See also Bain v R (New Zealand)  UKPC 33 (blogged here 11 May 2007) at para 34.
In Pitman, the fresh evidence rendered the convictions unsafe because (para 31 – 32) it was both capable of belief and prima facie raised issues which were substantial and such as to require proper investigation by the court. Accordingly, the Court of Appeal would have to approach the matter as follows (para 32):
“They will have to form an opinion on the appellant's mental capacity, then, depending on the opinion which they form, they may have to decide (i) whether he was fit to plead and stand trial (ii) whether there is a sufficient doubt about his ability to understand and participate in the joint venture (iii) whether his statement should have been admitted and, if necessary, (iv) whether there is sufficient evidence to raise the defences of unsoundness of mind or diminished responsibility. If they find in the appellant's favour on any of these issues, the conviction will be unsafe and must be set aside.”
In New Zealand many criminal lawyers will be thinking about R v Barlow, in which fresh evidence was, as announced yesterday, insufficient for the Governor-General to refer the case back to the Court of Appeal. That case seems to be heading to the Privy Council. No doubt the question will be whether the fresh evidence there makes the convictions unsafe. They would be unsafe if the jury did not have evidence which was both capable of belief and relevant to assessment of the weight of the evidence it did have.
[Update: for the Privy Council decision in Barlow, see note for 9 July 2009.]