COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
H.H.J. HAWKINS Q.C.
T20057547
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PENRY-DAVEY
and
HIS HONOUR JUDGE LORAINE-SMITH SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
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Respondent |
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Kerry Ley |
Appellant |
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Mr Joel Bennathan Q.C. for the Appellant
Hearing dates: 6 November 2006
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Crown Copyright ©
Lord Jusitce Scott Baker:
The facts.
The appeal.
"I knew him well enough to sit down and speak to him; and I had done that on a number of occasions. The last time I had seen him was on the Friday before the incident on the way to college."
He continued:
"It is accepted that the view that Miss Costello got of the man who would have been wearing a wig was a fleeting glance. Also, it was a limited view of the side of his face, and I have looked at it, as I have been asked to, in the context of the first descriptions and the evidence of other witnesses in the case. It is submitted that I should withdraw the case from the jury."
Then he went on to record the prosecution's response that it was a recognition case and there was evidence (i) as to the appellant's reaction when Miss Costello mentioned his name, putting his hands over his face and trying to leave as quickly as possible (ii) that Miss Costello had seen the wig before at his sister's house and indeed tried it on and (iii) the phone call the next day from the appellant's sister. He then said:
"In my view, in spite of the fact that this is a fleeting glance – this is the second defendant (the appellant) – in view of the other evidence I have referred to, it is a fit case for a jury to consider in relation to that defendant."
"Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relations and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality the greater the danger."
"When assessing the `quality` of the evidence, under the Turnbull doctrine, the jury is protected from acting on the type of evidence which, if believed, experience has shown to be a possible source of injustice."
"Undoubtedly the witness's view was a fleeting glance – she said the words herself when it was put by counsel; and it was a profile view. At the same point the witness must have been undoubtedly under pressure at the time. Then there is also – as in the case of (the other defendant) – the first description to be considered, which I will remind you of when I come to deal with her evidence, and the contents of the officer's notebook, to be taken into account as a weakness when you come to consider both their cases."
- She accepted she had a "quick fleeting glimpse of his face," or "the amount of time was virtually nil."
- The glimpse was obviously in difficult circumstances.
- She was 10 to 12 feet away with nothing to obscure her view.
- It was a profile view.
- She did not see all of the man's face.
- She was too far away to see:
- if he had facial hair;
- the colour of his eyes;
- particular features like the shape of his ears.
- She mixed up the names of the four, very similar looking, brothers when giving a name for the offender at the scene on the night;
- Mr and Mrs Costello both described the appellant as 5 foot 4 inches whereas he is 5 foot 9 inches.
- She told the police he was in his mid twenties whereas in fact he is 36.
Conclusion.