In 1997 I appeared in my first capital case. Unusually the appellant’s camp comprised mainly Kiwis. George Lamplough, then of Herbert Smith, was my instructing solicitor. Antony Shaw of Victoria University of Wellington prepared all the constitutional arguments. Matthew Coleman pored over countless unreported judgments at Downing Street; Anthony Rogers, an Auckland barrister, helped with research.
Kiwis on Death Row
On 26 March 1990, in the late afternoon, in a yam field in the Parish of Manchester in Jamaica, Godfrey Lindsay, a local farmer was shot dead in cold blood in the course of a robbery. On 5 February 1991, after a 2 day trial, the jury took 4 minutes to convict Trevor Palmer of the murder. The judge thereupon sentenced him to death. An appeal was dismissed on 30 May 1994, the Court describing it as a simple and straightforward case.
In Jamaica, as in New Zealand, an offender has the right to petition the Queen for special leave to appeal his or her conviction to the Judicial Committee of the Privy Council. Petitions in forma pauperis involving the death penalty are dealt with by the major City firms as part of their pro bono work. Mr Palmer’s case was referred to Herbert Smith, the Jonah Lomu of litigation in London. There the papers found their way to George Lamplough,and through him, to me.
At first sight the case looked hopeless: only minutes before the shooting Mr Palmer had been identified as heading towards the scene, together with two other men. At the scene two eyewitnesses said that they had seen three men approach and demand money from Mr Lindsay. They said that they had then seen Mr Palmer shoot the deceased and all three make off.
4 months later, at an identification parade, both eyewitnesses identified Mr Palmer as the killer. At trial they referred to liver spots on his face as being a characteristic they remembered. When being charged with murder after the ID parade, Mr Palmer had replied “So what about the other two?”
Shaking The Branches
Although it looked as though there was no room to manoeuvre, we decided to give the prosecution case a good shaking to see what, if anything fell out.
At this point our New Zealand background and training proved useful. Jamaica still labours under the common law system of disclosure in criminal cases. This regime had operated in New Zealand until the Court of Appeal’s decision in Commissioner of Police v Ombudsman. George and I therefore had had some experience of what could be done to circumvent the inherent unfairness and injustice of such a system. Accordingly amongst other steps we applied for a copy of the descriptions of the offenders given by the eyewitnesses, pursuant to the rights conferred on the defence by the English Court of Appeal in R v Turnbull.
After some prevarication the initial statements given to the police were disgorged. We discovered that the eyewitnesses had originally said that there were only two men at the shooting, and neither witness had been able to describe which person had pulled the trigger.
As it happened, Mr Palmer had given the police a statement prior to his arrest. He had denied taking part in the robbery or the shooting, but had admitted going to the general vicinity with two other men. This statement, which was both inculpatory and exculpatory, had not been given in evidence by the Crown. The Judge had crushed attempts by the defence to refer to it during the trial. This was unfortunate, because unknown to the judge, or to the defence, the statement was remarkably consistent with the accounts the eyewitnesses had originally given.
Suddenly, from a position where we had been faced with an open and shut case, we had a variety of serious complaints we could advance in our petition.
The preparation and argument of the petition is easily the most dangerous and the most misunderstood stage in the Privy Council process.
Petitions day is a tense affair. There may be between six and ten cases, most of which carry capital sentences. Counsel’s addresses are kept short. Their Lordships immediately decide whether the petition is allowed or dismissed. No reasons are given. To watch this series of cases involving decisions of a potential life or death nature is to be transported to another time; to another world. It is a very sobering experience.
To argue these cases is an art. The hardest part is to embrace the rule that no matter how complex or serious the case, one’s complaint should be reduced to a single page, then addressed the moment one is called on by the Appellate Committee.
This ruthless form of advocacy, where one abandons introductions, subsidiary issues, and on many occasions even the facts, is the quintessential style of top English counsel. Because Kiwi advocates appearing in the Privy Council have not been brought up in the same culture, it not infrequently leads to them being hit whilst still on their stool. The lesson to be learnt (well in advance of the contest) is that if you are in the ring with Mike Tyson, the instant the bell sounds you have to get out of your corner and land your best punch.
Fortunately, on 18 January 1996 we navigated our petition past the Appellate Committee and obtained another breathing space for our client. This further gap meant that five years had then elapsed since the death sentence was passed. If his appeal were to be dismissed, our client would now probably not be hanged because of the Privy Council ruling in Pratt v Attorney-General for Jamaica, which held that execution after a five year delay could constitute inhuman punishment contrary to the Jamaican Constitution.
Argument of the Appeal
After a number of false starts we were notified that the appeal would be heard on 22 April 1997. At the hearing we ran into trouble almost instantly. Lord Browne Wilkinson seemed to be unimpressed with our complaints about the differences in the eyewitnesses’ statements. In fact he attempted to reconcile the various versions. On the other hand, Lord Steyn appeared to be firmly on our side. As the two Law Lords batted me between their respective positions I felt less like a barrister and more like a tennis ball in a Wimbledon final.
Things settled down a little on the second day. The Crown encountered resistance as it tried to justify its non-disclosure and to support the trial judge’s manner of dealing with the admissions made by the appellant. Lord Brown-Wilkinson seemed to be more sympathetic to our case but the price appeared to be either that the proviso should be applied, that there should be a retrial, or that the case should be remitted to the Court of Appeal for it to make a decision. Any of these outcomes could have made the upholding of our complaints a pyrrhic victory. Our anxiety about the outcome was heightened by the fact that judgment was reserved, and their Lordships asked the prosecution for an indication whether the appellant would face the death penalty again if convicted on a retrial.
Judgment is given on 16 June. To our relief we win outright. Their Lordships rule that Mr Palmer was deprived of the substance of a fair trial because the prosecution case was conducted unfairly: the appellant’s written statement, linked as it was to his reply when arrested, should have been produced, and the Crown breached its duty by failing to disclose the initial statements made by the eyewitnesses. Moreover the trial judge commented unfairly on the appellant’s hapless efforts to get his undisclosed statement into the evidence. On the all important question of the remedy to be granted their Lordships find that given the lapse of time since the shooting and trial, it would be inappropriate to order a retrial. Mr Palmer is therefore free to go after almost eight years in custody, most of which has been on death row.
The result was due to the efforts of many New Zealanders. George Lamplough ran the case with great tactical skill. Antony Shaw prepared all the constitutional arguments. Matthew Coleman pored over countless unreported judgments at Downing Street; Anthony Rogers helped with research.
Did the case leave any impressions? First it stirred memories of the legacy of misery created by the common law disclosure rules in criminal cases. This was graphically illustrated by the appeal, although New Zealand has plenty of examples.
Somehow the fact that the eyewitnesses to the slaying had each given seriously conflicting statements had managed to escape the attention not only of the police, but also of the initial prosecutor and of two fresh Crown Counsel who were instructed on the appeal. As a result the whole criminal justice process was called into disrepute. Mr Palmer was deprived of a fair trial on a capital offence. The deceased’s family would probably always believe the killer got off on a technicality, and that they had received no justice. The High Court and Court of Appeal hearings had been a considerable waste of judicial resources.
The New Zealand judiciary supported this system until almost 1989. England, which had spawned the common law rules, had in practice abandoned them as a result of the guidelines issued by the Attorney-General in 1981. New Zealand lawyers should look back on the previous regime and be thankful that it has been left behind in favour of a much more open system.
The second impact made was in representing someone who was facing execution. Like many LAWTALK readers, neither George nor I grew up in a death penalty era. The last person to be hanged in New Zealand was in 1957. The fact that we had never seen nor spoken to Mr Palmer, and that we were drinking in the Last Chance Saloon made the situation a lot easier for us. The real strain must be on advocates who fight capital trials, knowing that in the event of a guilty verdict they will hear the judge immediately impose the sentence of death by hanging.
The case and the outcome were milestones in our respective careers. The pleasure that we might have felt as the result of a successful appeal was muted. It was never far from our thoughts that Mr Lindsay had been the victim of an unresolved brutal and cowardly killing. This type of work is a grim business, whatever the outcome.
The last reflection was on the paradoxical relationship between a prisoner and a jailer. Soon a warden would unlock Mr Palmer’s cell in order to release him. Yet that person, had the circumstances been different, could have been unlocking the door to take Mr Palmer to the gallows.
My mind turned to the jailer/prisoner relationship because of what had happened to Grant Adams, the former deputy chairman of Equiticorp, who had been imprisoned for fraud. After Mr Adam’s petition for special leave succeeded in the Privy Council, Robert Lithgow and Antony Shaw battled first in the High Court, and then in the Court of Appeal to get Mr Adams bail, on the same day. Eventually, at about 5pm, Sir Robin Cooke made the appropriate order. By the time it was communicated to the prison camp, the only remaining form of transport to Auckland was a mail bus, which left at midnight, and arrived at about 8am. Mr Adams asked the prison authorities if he could stay the night so he could catch a flight in the morning. The response of those who until then had been charged with detaining him, by force if necessary? “Do you think this is a ****ing hotel” said the superintendent. “**** off!”. Mr Palmer would have seen the funny side, too.