Appendix Individual opinion of Mr. Bertil Wennerctren. submitted pursuant to rule 94, paragraph 3. of the Committee's rules of procedure, concerning the Committee's views on communication Ho. 349/1989 (Clifton .Wright v. Jamaica) I agree with the Committee to the extent that the trial judge should have brought the implications of the pathologist's estimation that the victim's death had occurred 47 hours before the post-mortem to the attention of the jury. I do not, however, consider that these implications were such that they could have influenced either verdict or sentence. X therefore disagree with the finding that said omission must be deemed a denial of justice and that this remains so even if the placing of this evidence before the jury might not, in the event, have changed the verdict and the outcome of the case. In my opinion, the omission was a minor irregularity that did not affect the conduct of the trial inasmuch as article 14 of the Covenant is concerned.. My reasons are the following. The pathologist testified both in respect of how and when death of the victim occurred. In the latter respect, he first stated that the "post-mortem elimination was performed at the Spanish Town hospital morgue 47 hours after death". Upon the judge's question "When you [said] the examination was 47 hours after death you are estimating it?", he replied "That is my examination". This estimation was not questioned during the trial, although death must have occurred 41, and not 47, hours before the post-mortem examination, namely when the victim's wife began to search him. The discrepancy was also not addressed before or by the Court of Appeal. The first to raise the point was counsel before the Judicial Committee of the Privy Council, who made the point the central issue of the author's petition for special leave to appeal, although as a matter of law the Judicial Committee could not consider it. The Human Rights Committee thus is the first instance to consider this point on its merits. I believe that an explanation for the situation described above is easy to find. The pathologist's testimony contained no more than a mere estimation, and it is known that it is impossible to determine the time of death with exactitude in a case such as the present one. Pathologists' estimations must allow for a broad margin of uncertainty. This implies that the pathologist's estimation did not really conflict with the remainder of the evidence against the author. I would on the contrary say that it was consistent with it. However, 1 believe, as the Committee, that the judge should have told the jury not only about how they must evaluate the testimony of the pathologist in respect of the cause of death but also in respect of the time of death. He could not reasonably assume that what he knew about margins of uncertainty and errors of appreciation was also known to the members of the jury. However, I do not think that this omission affected the deliberations of the jury negatively. As the estimation was not in conflict with the other evidence, and this other evidence was indeed convincing, there is in my view no reason to conclude that there has been a denial of justice. I note in this context that the Court o£ Appeal, when dismissing the author's appeal, stated that "this was in fact one of the strongest cases against an accused that we have seen". Bertil WEMERGREN -310-