Phillip McKenzie (Appellant) v The Queen (Respondent)

From the Court of Appeal of Jamaica

Calvin Clarke (the deceased) was shot dead whilst swimming in the Back River near Temple Hall in the parish of St Andrew. He died from three gunshot wounds fired from above. His killing was witnessed by Tiny Chambers, a woman of 21 who had gone down to the river to bathe, as often she did, and who, that sunny afternoon, had taken her six year-old nephew, Rohan Shae (Rohan). The appellant, then aged 29, was also down at the river that afternoon and, indeed, had spoken to Tiny Chambers shortly before the killing. Tiny Chambers said that the appellant was the killer; she saw him fire the shots. The appellant denied it. Tiny Chambers’ evidence was supported at trial by unsworn evidence from Rohan (then aged 7). The appellant made an unsworn statement from the dock denying his guilt.

The appellant was convicted and he was sentenced to life imprisonment with a recommendation that he serve 35 years before becoming eligible for parole. The Court of Appeal dismissed his appeal against conviction and sentence. The sole ground of appeal against conviction argued before the Court of Appeal was that the trial judge had erred in law in admitting Rohan’s unsworn evidence without first holding a voir dire to determine whether such evidence should be admitted. This was contrary to section 54 of the Juveniles Act which provides that such evidence is admissible only if a child is found to be of such intelligence as to justify its admission and to understand the duty of speaking the truth. The Court of Appeal held that Rohan’s evidence had indeed been inadmissible but concluded that nevertheless the evidence of Chambers was overwhelming and that a jury, acting honestly and properly, would inevitably have found that the appellant was guilty of the offence of murder. The Court accordingly held that there had been no miscarriage of justice and applied the proviso to affirm the conviction.

In advancing the appeal before the Board the appellant made no criticism of the Court of Appeal for applying the proviso and dismissing the appeal on the facts and arguments before that Court  but contended that there was now before the Court further material demonstrating such incompetence on the part of defence counsel at trial (Mr Michael Thomas) as to make the appellant’s conviction now appear unsafe. He criticised counsel with regard to four particular matters:

(1) The appellant made an unsworn statement from the dock instead of giving sworn evidence.

(2) The jury were not given a good character direction.

(3) No evidence was adduced of the contents of the appellant’s police interview shortly after his arrest (two weeks after the murder) on 8 May 2002.

(4) Counsel failed to object to Rohan’s unsworn evidence being given in violation of the Juveniles Act.

The Board then discussed the facts of the case and rejected all the four criticisms made by the appellant of defending counsel. The suggestion that Tiny Chambers, who knew perfectly well who the killer was, would on the spur of the moment falsely accuse the appellant of murder merely because of some past ill-feeling between their families was held absurd. The Board dismissed the appeal.