Irish Court of Criminal Appeal

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Cite as: [2004] 4 IR 166, [2004] IECCA 18

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Judgment Title: D.P.P.-v- Lynda Lee

Neutral Citation: [2004] IECCA 18

Court of Criminal Appeal Record Number: 13/99

Date of Delivery: 20/07/2004

Court: Court of Criminal Appeal

Composition of Court: Murray J., Lavan J., Ó Caoimh J.

Judgment by: Murray J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Murray J.	Quash conviction, no re-trial

Outcome: Quash conviction, no re-trial

THE COURT OF CRIMINAL APPEAL

[C.C.A. No. 13 of 1999]
Murray, J.
Lavan, J.
O’Caoimh, J.

THE PEOPLE AT THE SUIT OF THE
DI0RECTOR OF PUBLIC PROSECUTIONS

Respondent

And

LYNDA LEE

Applicant

Judgment of the court delivered by Murray J. on the 20th day of July, 2004

The applicant in this case seeks to appeal from her conviction in the Circuit Criminal Court of the offence of stealing a ladies black leather jacket, from a shop known as Elegance Fashions, Balbriggan, Co. Dublin on the 5th October, 1996, contrary to s.2 of the Larceny Act 1916 as inserted by Section 9 of the Criminal Law (Jurisdiction) Act 1976. The applicant was convicted after trial by jury and subsequently sentenced to six weeks imprisonment. She was subsequently released on bail pending this appeal.
The grounds of appeal against her conviction relied upon by the applicant are as follows: -
(a) The learned trial judge erred in law in allowing the trial on a charge of stealing a ladies black leather jacket to go ahead when it was brought to his attention that it was only ‘an imaginary coat’, (there being no exhibit and no evidence before the court that the ladies black leather jacket in question ever existed).
(b) The learned trial judge erred in law not taking a serious view of the fact when it was brought to his attention that the evidence of the sole witness, Eileen Donnelly at the trial contradicted her evidence taken on deposition in Balbriggan District Court by Judge Delap.
(c) The learned trial judge erred in law in allowing the evidence of
Ms Eileen Donnelly identifying the applicant in court during the trial as the person who stole the coat in question to be considered by the jury having regard to the evidence that she was not given an opportunity to stand in an identification parade.
(d) The learned trial judge erred in law when addressing the jury in advising them not to be concerned if they made a mistake in their decision as a higher court than this court would rectify their verdict if they were wrong.
It may be noted that grounds of appeal in this case were first lodged on behalf of the applicant by her then solicitor shortly after her trial and conviction. Two days later she lodged grounds of appeal in person and those are the above grounds. Her then solicitor was discharged. Subsequently an application to amend and add other grounds of appeal was initiated on her behalf by her present solicitor. At the hearing of this appeal her counsel stated on her behalf that she wished to confine her appeal to the grounds outlined above and originally lodged by her.

Background Facts
The evidence before the trial court was that Ms Eileen Donnelly carried on the business of a ladies boutique in a shop called “Elegance Fashions” in Bridge Street, Balbriggan, Co. Dublin. She gave evidence that at approximately 4.00pm on the date of the offence two ladies came into the shop and walked around looking at the stock for about five minutes. She was dealing with a customer and on being alerted by a friend she looked around and saw the two ladies going out the shop door, one of them with a leather jacket folded across her arm. She recognised it as one of her jackets, being the only one of its kind in stock. She went out the door after them and they started to run. She ran after them. They turned right down Quay Street and she proceeded behind them. As she approached them they got into a car and drove away. She took the number of the car. She wrote it down and reported the matter to the gardaí and gave them the car registration number. In evidence she gave a description of both ladies. In her evidence she identified the accused, whom she described, inter alia, as ‘the blonde lady,’ as the person who had the jacket over her arm. She did this by pointing her out in the courtroom. She went onto to give evidence that she had been asked by the gardaí to go to the District Court in Balbriggan on 10th October, 1996. She gave evidence that she went into the District Court room on that occasion in the presence of Garda Wynne where there were roughly about nine or ten woman in all in the courtroom. She recognised and identified the accused who was sitting in the courtroom as being the person who had walked out of her shop with the overcoat without paying. She went on to add that prior to going to the District Court she went for a cup of coffee in a nearby café. She had also recognised the accused there who was having breakfast in the café before the witness went into the courtroom.
The garda evidence was that the applicant was the registered owner of the motor car bearing the registration number noted and given to them by Ms Donnelly. The applicant in her evidence admitted that this was so and it was expressly acknowledged on her behalf by her counsel that the car which the witness said the two ladies got into was in fact the applicant’s motorcar. As regards the identification of the applicant made by the witness it was put to Ms Donnelly that the other women who were in the District Court, where the witness identified her, were people known as ‘travelling people’. The suggestion was made that the applicant was very obviously different from the rest of the women there. The response of the witness was that she did not think everybody in the court that day were travelling people, that she just recognised the applicant when she went in.
Garda Wynne gave evidence of having gone, with a garda colleague, to the home of the applicant after he had ascertained that she was the registered owner of the motor car in question. He had a search warrant. He searched the premises and did not find anything. He noted the motor car bearing the registered number in question parked in the garage. He gave evidence of having arrested the applicant and bringing her to Balbriggan garda station. She made no statement while in custody. She was charged and released on bail to appear before Balbriggan District Court on 10th October, 1996. The witness then gave evidence of meeting Ms Eileen Donnelly by arrangement outside the court and asking her to come into the court to look around and see if she could identify any person. He made a note of approximately ten ladies ranging from approximately 16 or 17 years of age up to the mid-fifties. He referred to them generally as a cross-section of people. Immediately Ms Donnelly identified the applicant as a person who took the jacket from her shop on the date of the offence. He did not make any note of any “lady travellers.” “Basically it was just a cross-section.”
The applicant was called to give evidence. She outlined how she had advertised two bunk beds for sale on a notice board in a Superquinn supermarket. She explained how as a result of this a Mr Anthony Murphy telephoned her to indicate that he was interested in purchasing them. As a result of this he came to her house by arrangement at 4.00pm on Saturday, 5th October, 1996. He purchased the beds and took them away in a white van in which he had arrived. She stated that she never left her house on any occasion on that Saturday and was not at any time in Balbriggan. As regards her motor car she stated that her parents normally came to stay with her on a weekend. They came that Saturday and her mother and father took the car to go and do some shopping that afternoon. That was the motor car bearing the registration number referred to in the evidence of Ms Donnelly. She stated that her parents told her that they were going out to do some shopping. They did not say where they were going. They returned on Saturday evening. She stated that Mrs Donnelly must be mistaken in her identification. It could not have been her as she was not in Balbriggan on that date.
A Mr Anthony Murphy gave evidence corroborating her account of his visit to the applicant’s house at approximately 4.00pm on the date of the offence to purchase the bunk beds as a result of the advertisement which he had seen in the supermarket. The applicant’s father gave evidence of having left his daughter’s house with his wife in the applicant’s motor car in Malahide at about 2.30pm on the afternoon in question and of going to Balbriggan so as to arrive there at around 3.00pm. In his evidence he said that they drove to Balbriggan to do some shopping. They drove around a bit, here and there, and parked the car outside Quinnsworth supermarket. He and his wife got out of the car, walked around a bit and back into the supermarket to buy a few messages. They left the town around 4.00pm. He stated that there was no possibility that the car had been taken after it had parked there; that it was in the same place as he had parked it when he returned. The applicant’s mother, Mrs McCormack, also gave evidence corroborating the applicant’s account. She took the call initially made by Mr Murphy concerning the purchase of the beds. He left a message, she wrote down the number and gave it to her daughter. She gave evidence concerning the drive and visit to Balbriggan consistent with that of her husband.
A Mr Duignan was also called on behalf of the defence. He gave evidence of having gone to the applicant’s house on the Saturday in question. He went over to see Mr McCormack. He had just left. The applicant told him that she was expecting somebody to collect beds. The man called to collect the beds and he left the house shortly after that. Subsequently he went to Balbriggan District Court with the applicant and was there when Ms Donnelly came in to identify her. He said that there was only the applicant and two or three “travelling ladies” there at the time. There were no other ladies.
At the conclusion of his evidence, Mrs Donnelly was recalled. With regard to the evidence of Mr and Mrs McCormack she stated that it was two ladies whom she saw getting into the car on the occasion in question. A person to whom she identified as the applicant got into the drivers seat. She saw no man getting into the car. Just two ladies, the two that had left the shop. In cross-examination she was asked whether she was accurate when she said there were ten or twelve in the court when she identified the applicant. She responded that it could have been nine, that it was around that figure.

The Appeal
As the learned trial judge observed in his charge to the jury the primary issue at the trial was one of visual identification. The complainant, Ms Donnelly, identified the applicant as one of two persons who had taken the coat from her shop. The applicant contended that she was not in the shop or in Balbriggan on the day of the offence and called evidence of an alibi in support of that defence.
In the circumstances the court considers it appropriate to first address the third ground of appeal. In substance it is contended that the verdict is unsafe because no formal identification parade was held, the applicant was not given the opportunity of such an identification parade, the informal identification was unsatisfactory and the learned trial judge erred in permitting the complainant to give a ‘dock identification’ in the course of the trial.
It was submitted on behalf of the applicant that the identification procedures adopted in this case and of which evidence was given in course of the trial, were so inadequate, unfair and unsatisfactory as to render the verdict unsafe. Counsel for the applicant pointed out that the identity of the applicant as a suspect was known to the gardaí within at least two days of the offence since they had ascertained that she was the registered owner of the motor car alleged to have been used by the persons who stole the jacket. In these circumstances a formal identification parade should have been held. This would have enabled the complainant to see whether she could or could not identify the culprits whom she saw in her shop in properly controlled circumstances where the applicant, or the applicant and her solicitor, would have had an opportunity of assessing whether or not the circumstances of the identification were fair and where the applicant would have been in a position to challenge the fairness or reliability of such an identification at the time and subsequently at the trial. She was deprived of that opportunity and the jury were disadvantaged in not having such evidence. It was submitted that there was no evidence before the court of any attempt to arrange a formal identification nor was there any evidence justifying the failure to hold such an identification parade. It was impermissible for evidence to be given of an informal identification by a complainant of an accused in the absence of any evidence justifying or providing a reasonable explanation for not holding a formal identification parade and that to do so was contrary to the law and well established principles set out in a number of cases. In this respect counsel relied on The People (Director of Public Prosecutions) –v- Cooney ([1997] 3 I.R. 205), The People (Director of Public Prosecutions) –v- O’Reilly [1990] 2 I.R. 415 and The People (Attorney General) –v- Fagan (1974) 1 Frewen 375 and certain other authorities cited in those cases. In addition it was submitted that to allow evidence of a ‘dock identification’ whereby the applicant was identified in court by the complainant, where the applicant was clearly otherwise identifiable as the accused person before the court, was inherently unfair and unreliable and wrong in law.
On behalf of the Director of Public Prosecutions it was submitted that there was no rule of law or practice that required visual identification be proved by means of a formal identification parade: each case must be considered on its own facts. Director of Public Prosecutions –v- O’Reilly citing The People (Attorney General) –v- Martin [1956] I.R. 22. In this case the complainant had ample opportunity to identify the applicant when she did so in the District Court courtroom and she had previously recognised her when she visited a café in Balbriggan before going to the District Court for the purposes of identification. In the circumstances of the case the evidence was admissible to the jury who were entitled to rely upon it. The jury accepted the evidence of the complainant and the verdict could not be considered unsafe. As regards dock identification, this was not such a case since the complainant had identified the applicant prior to the trial.

Decision on third ground of appeal.
As indicated above the primary ground of appeal relates to the evidence on visual identification. There is one subsidiary matter related to this ground of appeal which can be dealt with briefly. The law relating to the frailty and undesirability of so-called ‘dock identification’ applies to the circumstances where a witness, who, prior to the events giving rise to the prosecution had no knowledge or acquaintance of an accused, and identifies him or her for the first time by pointing him or her out in the courtroom at the trial. The reasons why such an identification may be considered unsatisfactory are self evident since a witness may be inclined to make assumptions concerning the identity of the person who is sitting in a dock with a warder on either side. Hence the term ‘dock identification’. Although the old fashioned prisoner’s dock no longer exists in our courts of trial, nonetheless the same or similar considerations even under current day practices and procedures may apply to the identification of an accused for the first time by a witness in the courtroom during a trial. (see Director of Public Prosecutions –v- Cooney, cited above). It is not necessary to examine this issue further because the court is satisfied that what took place in the course of the trial in this case was not a dock identification as such. This was not an identification in the trial courtroom for the first time by the witness in question, the complainant. Her evidence was that, although she had not known the applicant before, she had previously had an opportunity to identify her as the person who committed the offence subsequent to the larceny of the coat from her shop. Where prior identification of an accused has occurred, either by means of a formal identification or through a more informal method, it is a normal proof of the prosecution for a witness to identify the accused in court as the persons of whom they are speaking in their evidence. In these circumstances the question of whether it was proper for the learned trial judge to permit evidence of a ‘dock identification’ does not arise.
The issues on this ground of appeal arise therefore in the context of the failure of the gardaí to hold a formal identification parade for the purpose of adducing at the trial evidence of visual identification of the applicant by the complainant and the absence of any justification or explanation for not holding a formal identification parade. It should perhaps be pointed out that it is not contended that the applicant was overtly refused a formal identification parade. The question of holding a formal identification was simply not mentioned in the course of the evidence at the trial except in one minor respect referred to below.
It also seems appropriate at this stage to point out that this issue arises in the context of the careful approach which juries are required to adopt when considering evidence of visual identification in criminal cases, particularly where their verdict depends wholly or substantially on the correctness of such identification. These considerations are expressed in the oft quoted and approved statement Kingsmill Moore J. in The People (Attorney General) –v- Casey (No. 2) [1963] I.R. 33 at 39 and 40, in the following terms:
“We are of the opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has proved to be erroneous; and also that they may be inclined to attribute too much probative effect to the test of an identification parade. In our opinion it is desirable that in all cases, where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identifications has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution. …We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there had been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observations had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be especially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.” The Supreme Court in that case pointed out that this was not a stereotyped formula but was the minimum caution to be given in any case which turned substantially on personal identification and which may need to be amplified in the circumstances of a particular case.
Now there is no doubt that in this case the learned trial judge gave a direction to the jury in accordance with the minimum warning outlined above. However, the citation above throws into relief the underlying considerations to which the courts have had regard when considering the pre-trial procedures where a witness is asked to identify a suspect or an accused for the purpose of giving evidence of visual identification at a subsequent trial.
In The People (Director of Public Prosecutions) –v- O’Reilly [1990]2. I.R. 415 this court considered the correctness of an informal visual identification in circumstances comparable to what occurred in this case. In that case the complainant was invited to accompany the gardaí in a garda car into the town of Edgeworthstown where they hoped she would be able to identify the man whom they suspected of committing the offence with which they were concerned. The complainant had an opportunity of seeing twenty or thirty people passing by in the street and she identified from one group of two women and three men, a man who could possibly be the culprit. As she felt she did not get a good look at him they waited for about an hour when four people emerged from a building, which was in fact a courthouse, and the complainant identified the accused in that case. It is relevant to cite extensively from the judgment of this court in that case delivered by O’Flaherty J. concerning the issue of visual identification.
“This case bears many similarities to the case of The People (Attorney General) –v- Fagan [1974] 1 Frewen 375. In that case, too, the only issue at the trial was whether the identification of the applicant was adequate. There, the accused who had never seen the man before the particular robbery, and the identification took place outside the Circuit Court.”
The judgment of the Court of Criminal Appeal recounts that no identification parade was held. The reason given was that the applicant did not live at home and ‘was not always that readily available’. The court categorised this explanation for not holding a formal identification parade as “less than satisfactory”.
At page 13 of the judgement of O’Flaherty J. continued with a citation from the Fagan case (Frewen p.377)
“ ‘In People (Attorney General) –v- Martin [1956] I.R. 22 the Supreme Court held that there is no rule of law or practice that requires visual identification of a person to be proved by means of an identification parade; each case must be considered on its own facts. It is readily understandable that other types of identification may in certain circumstances be fairer and more dependable than a formal identification parade which, because of its surroundings, atmosphere, range of choice and limited opportunity for observation, may be a less than satisfactory means of achieving a reliable identification. But the acceptability of an alternative method must always depend on the circumstances of the case.’
Here the explanation for not holding a formal identification parade
must also be accounted less than satisfactory. The reason given was that it might be ‘more beneficial’ to the defendant not to hold one. While it is right that those in charge of prosecution should be scrupulous in looking to the rights of the accused, nonetheless, the decision as to what is most beneficial for an accused, in the preparation and conduct of his defence, must be primarily a matter for the decision of the accused and his legal adviser, (if he has a legal adviser at the time). It should be said that the court is in no doubt that Garda Coen acted out of a dutiful though mistaken conception as to what was right and proper in the circumstances of this case.
…
There will be circumstances where it is not possible or practicable to hold an identification parade. If, for example, the suspect is of singular appearance, it may not be possible to get together sufficient people to make up a fair parade. The holding of an identification parade would probably be a redundant exercise if the witness knew the suspect previously – though a warning would still have to be given in accordance with the principles laid down in The People (Attorney General) –v- Casey (No. 2) [1963] I.R. 33.
Neither is one concerned where a suspect will not agree to go on an identification parade or attempts to frustrate it once it is assembled. If that is the course of a suspect, afterwards an accused, takes then that is the particular option that he has exercised and he may have to live with the consequences. However, the situation in this case was that the accused man was given no such option at all.
The Court is clearly of the opinion that this is a case that required the holding of an identification parade and the Court will deprecate any suggestion that the holding of formal identification parades have outlived their usefulness; they are important in that they provide a filter for both prosecution and defence. If a suspect is not picked out at an identification parade then very often the prosecution may go no further. Conversely, if a suspect is identified he may well think that the time has arrived to reach an accommodation with the prosecution by pleading guilty to the alleged offence.
The Court is also mindful that an important difference between a formal identification parade an informal identification, such as in the instant case, is that in the former the accused (and his legal adviser if one is present) has full knowledge about the composition of the parade and may object if it is perceived to be unfair. Furthermore, the court of trial will have the benefit of a detailed account of the parade and a description of those who participated in it. By contrast, an accused has no input where there is an informal identification and it is unlikely even to have knowledge of its happening. Therefore, he may be seriously inhibited in challenging its fairness at the trial.”
Having concluded that the identification which was obtained in that case was in such doubtful circumstances as to render the conviction unsafe, the Court observed “the trial judge’s ruling should certainly have been sought on the admissibility of the identification evidence obtained in such frail circumstances.”
In the present case, according to the evidence of Garda Wynne, after the applicant had been charged with the offence in question following her arrest by the gardaí she was remanded on her own bail, presumably by a Peace Commissioner, to Balbriggan District Court on the following October 10th. On the 10th October, Garda Wynne was to be present for the purpose of giving evidence of arrest, charge and caution in respect of the applicant. Knowing that the applicant was going to be there to answer the charge, Garda Wynne had asked the complainant Ms Donnelly to come to the courthouse. According to Garda Wynne before he gave his evidence he met Ms Donnelly outside the court. He asked her to come into the court to look around the court to see if she could identify any person. Although it was not expressly stated, it was clearly for the purpose of identifying any person whom she recognised as being one of the two women who stole the coat from her shop. It is also an unavoidable inference that Ms Donnelly knew that at least a person suspected of larceny from her shop would be in Balbriggan for the court sitting on that date. The evidence of visual identification led by the prosecution at the trial purported to be based primarily on that visual identification in the courthouse. The main prosecution witness, Ms Donnelly had described the applicant in her evidence as being blond, slim and around 38 years of age. The second woman in the shop was about 19 years with short dark hair. In direct evidence she said there were about nine or ten women in all in the courtroom. Her identification was challenged in cross-examination on the basis that “… the types of people that were there in the District Court were delicately known as travelling people, …”. The witness’s response was that she did not think they all were, and that she would not imagine they all were. Then the following questions and answer occurred: -
“I am suggesting that my client stuck out as being a person who is not a member of the travelling community wouldn’t you agree with that?
I do not think everybody in the court that day were travelling people
I would suggest to you the contrary that they were?
It didn’t stick in my mind that they were.
And that my client was obviously different from the rest of them?
I just recognised the lady when I went in.”
The complainant was recalled at the end of the defence case after alibi evidence was given and confirmed her identification of the applicant.
In cross-examination a question was put to her as follows:-
“There was no question of an identification parade, was there?
Answer: No.”
This was the only mention of a formal identification parade in the evidence and no reason by way of explanation or justification was tendered by the prosecution as to why an identification parade was not arranged or that it would have been difficult or impractical to do so.
Garda Wynne’s evidence regarding the circumstances of the identification in the courtroom was that he made “… a note of approximately ten ladies ranging from approximately 16, 17 years of age up to mid 50’s. All different age groups, different hair colouring, just a cross section basically of what you might come across. Straight away Eileen Donnelly identified Linda Lee in the court and pointed her out to me as being the lady who took the jacket from the shop on the 5th.” When it was put to him by counsel for the Director of Public Prosecutions that it was being suggested that there were many travelling people in the court on that date, he replied “From my recollection I did not make a note of any lady travellers. Basically it was just a cross-section. Just from my own recollection I cannot even remember a traveller there. There was (sic) travelling men alright but not ladies.”
It appears from the transcript that when the garda witness said he made a note of who was there he was not referring to a written note but rather a mental note.
A witness called on behalf of the applicant for the defence, a Mr Duignan, gave evidence of having accompanied her to the District Court on the day when the visual identification was made by the complainant. He claims that there were only ‘two itinerant ladies’ in the courtroom with the applicant. One of those had a baby with her. He claimed there were no other women there at all. At another point he said there were ‘two or three travelling ladies there and the rest were men and myself’.
The visual identification of the applicant in the courtroom in Balbriggan, was made the lynchpin of the prosecution’s case on this point and the circumstances in which it was carried out should be contrasted with the nature of a formal identification parade cited in The People (Director of Public Prosecutions) –v- O’Reilly. “It involves that there are assembled eight or nine people of similar age, height, appearance, dress and walk of life as the suspect; that the parade will be supervised by an independent garda (that is, one not concerned with the actual investigation); that full details would be kept of the description of the various people making up the parade and that the witness should not have any opportunity of seeing the suspect in advance of the holding of the parade. This is not intended to be an exhaustive list for such parades and, on occasion, the way in which an identification parade has been held has, itself, been subject to criticism (see, for example, The People (Attorney General) –v- O’Driscoll 1 Frewen 351)”
While it may also be said that a failure to observe every single detail as set out in the passage cited would not necessarily render evidence of visual identification at an identification parade inadmissible or unsafe to be relied upon, the contrast between what happened in this case with that of a formal identification parade is stark.
It is clear from the judgments in the Fagan and O’Reilly cases that because of certain inherent dangers in relying exclusively or predominantly on evidence of visual identification there is an onus on the investigating gardaí and the prosecution to ensure that evidence of visual identification is obtained in the most reasonably reliable form which, in the absence of reasonable cause, should be in the form of a formal identification. It is possible that a reasonable explanation for not holding a formal identification parade may be evident or inferred from the particular circumstances of the case or there may be a specific explanation given in evidence of the kind referred to by O’Flaherty J. in the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) –v- O’Reilly [1990] 2 I.R. 415, such as the refusal of the accused to participate in one. Neither should it be said that the absence of the holding of a formal identification parade without adequate explanation would in all circumstances be a bar to a jury being permitted to consider evidence of an informal identification provided that the circumstances in which it occurred were not such as to materially prejudice an accused in the conduct of his or her defence.
Whether evidence of an informal visual identification by a witness should be admitted at a trial is a matter for the discretion of the trial judge, having regard to the rights of the accused to be in a position to fairly put forward his or her defence and challenge the prosecutions case as well as balancing the probative value of such evidence against its potential prejudicial effect in all the circumstances of the case. Where the prosecution has tendered an explanation as to why no formal identification parade was arranged, the jury should be reminded of that evidence. In addition the jury should be informed in general terms what a formal identification entails and contrast it with what took place in the circumstances of the particular informal identification
It goes without saying that a trial judge, having admitted such evidence, should remind a jury of the defence case challenging the reliability of any such informal identification as well as the prosecution case as to its reliability. As previously indicated this approach by the courts to informal identification and indeed visual identification generally is governed by the considerations set out, and so often approved, in The People (Attorney General) –v- Casey (No. 2) [1963] I.R. 33 where, inter alia, it was noted that juries may be inclined to attribute too much probative effect to visual identification when there has been a considerable number of cases where an otherwise bona fide visual identification has been proved to be erroneous.
In the present case, apart from the fact that the evidence is equivocal as to whether the applicant could have been too readily picked out because she stood out as a person of a different walk of life from any of the other women there, it is clear from the evidence of Garda Wynne that contrary to the women in the courtroom being of a similar age they were of all ages ranging from 16 to the 50’s. Rather than being of “similar age, height, appearance, dress and walk of life as the suspect” his evidence was that they were “all different age groups, different hair colouring, just a cross-section basically of what you might come across.” Furthermore, no evidence was tendered as to the precise circumstances of the visual identification as regards the location or seating of the applicant herself or indeed where the other nine or ten women were sitting in relation to her. As far as the prosecution evidence goes she may have been the only blond woman sitting in an isolated position near the door. The applicant herself being unaware of the visual identification process was not in a position to take cognisance of its circumstances in order to raise such issues as she herself might wish concerning its reliability or fairness.
These were serious frailties and at odds with virtually every element said to favour a formal identification. The garda evidence was of a very general nature but sufficient to disclose those frailties while at the same time lacking any detailed note of the situation in the courtroom when the applicant was identified. It is also a case in which the applicant was identified as a suspect very soon after the offence had been committed and it seems to the court to be a classic case in which a formal identification parade should have been held. The court does not consider that this view is affected by the fact that the complainant was also able to give evidence of having identified the applicant having breakfast in a café in Balbriggan shortly before the sitting of the court which she was to attend. The court does not see any reason why in principle such evidence of a visual identification at a chance meeting should not be admissible although there was no evidence of the detailed circumstances of that identification when the complainant knew that a person who may have committed the offence was coming to Balbriggan courthouse that day. However, the court does not consider that the issues concerning evidence of the courtroom identification in Balbriggan are affected by this earlier encounter and in particular does not obviate the desirability in principle of holding a formal identification parade in the absence of good reason to the contrary.
It is important for juries that in cases which turn substantially on evidence of visual identification that there is made available to them, given the inherent difficulties associated with it, the most reliable evidence which the prosecution was or should reasonably have been in a position to provide.
As pointed out in the O’Reilly case, in an informal identification such as in this case, an accused has no input and is unlikely even to have knowledge of its happening “therefore, he maybe seriously inhibited in challenging its fairness at the trial”.
It is evident from reading the transcript that the defence in this case was so inhibited, something which would not have been the case if a formal identification parade had been held.
In the O’Reilly and Fagan cases reasons were advanced by the prosecution as to why a formal identification parade was not held. These were rejected respectively as being inadequate. In this case no explanation whatsoever was advanced. The only evidence at the trial being that there was simply no question of an identification parade.
While the defence put the reliability of the visual identification in issue, no objection was taken to admissibility of the evidence nor was the trial judge asked to discharge the jury on the grounds that it was unsafe and unreliable. It is generally not acceptable for an accused to acquiesce to the conduct of a trial, and in particular to the admissibility of evidence without objection, and subsequently to raise on appeal points which could have been properly raised in the course of the trial. There are of course exceptional circumstances where the court, in its discretion, considers an issue not raised at the trial to be so fundamental to the justice of the case that it may be considered in an appeal to this court.
However, the court does not consider it is necessary to come to a definitive conclusion on this point in this case as it is of the view, in the light of the evidence concerning visual identification and the views already expressed with regard to it, that it would not be doing justice to this ground of appeal if it did not have regard to the directions given to the jury by the learned trial judge on the question of visual identification in the course of his charge to them. A direction to the jury on this issue appropriate to the circumstances of the case, may, again in appropriate circumstances, be a counterbalance to exclude any risk of injustice which might be thought to arise from the frailties of visual identification. On the other hand an insufficient or inadequate direction may just compound those frailties.
As previously indicated the learned trial judge gave a direction to the jury on the question of identification entirely compatible with the minimum requirements in the case of The People (Attorney General) –v- Casey. In the course of a short exposition the trial judge pointed out that even the most honest witnesses had made mistakes in the visual identification of an accused. Having so cautioned them in general terms he went on to state “It has occurred where there has been identity parades and matters which came to light afterwards which proved that the identification was erroneous. It may be due to the fact that the person identified is using only one of her god given senses and that this is the sense of eyesight. It maybe due to that fact so you must especially cautious before accepting the identity parade as being, the identification as being correct. You will bear in mind the opportunity that Eileen Donnelly had of viewing that person that was in the shop and the person she alleges took the leather jacket and the view she had as this person got into the motorcar. However, if you are satisfied beyond reasonable doubt that the identification by Ms Donnelly is correct you are entitled to act on it as your duty to act on it as if you are so satisfied.” That was the sum total of his direction to the jury on the visual identification issue.
While this complied with the general and minimum warning that should be given to a jury in a case which depends substantially on visual identification it does not reflect the need to amplify that warning, as stated in the Casey case, and explain its implications in the particular circumstances of the case. The trial judge made no reference to the fact that no identity parade took place. Indeed he appeared to treat the identification which did take place as being on a par with a formal identification parade. He did not refer at all the fact that the persons in the District Court courtroom at the time. unlike what might be expected to occur in a formal identification parade, were a cross-section of women of a wide range of different ages, different colour hair and of whose general presentation and looks there was otherwise no evidence from the prosecution. He referred only to the correctness or otherwise of the complainants identification in the courtroom without referring to any of the obvious frailties inherent in the procedures followed and which they ought to take into account before deciding whether the identification was reliable. He made no reference to defence’s point that the applicant may have stood out simply because she had an appearance different to all the other women in the courtroom. He made no mention of Mr Duignan’s evidence of the situation in courtroom at that time. In short he put the prosecution case to the jury but not the defence case at all. Indeed, irrespective of the ruling in the Casey case, the defence case concerning the reliability of the courtroom identification was not put to the jury. All that was pointed out to the jury was the prosecution case namely that the complainant had identified the applicant in the District Courtroom.
In the O’Reilly case where, as already pointed out, an informal visual identification took place outside a courthouse, the court stated “… the deficiencies in the actual identification that was made at Edgewardstown should have been highlighted to assist the jury. In other words, while the first part of the Casey formula was observed, the second part was not. The People (Attorney General) v- Casey (No. 2) [1963] I.R. 33.
The Court is of the opinion that in the circumstances of this case the judge’s directions to the jury should have been much more specific as regards the danger of acting on the evidence of Mrs Farrell. While he pointed to the fact that mistakes can be made even where there is a formal identification parade, he did not put the converse which was this case where there was no formal identification parade at all and the infirmities that surrounded the actual identification that was made in Edgewardstown should have been emphasised in greater detail to the jury.
In fairness to the learned trial judge it must be said that he was not asked to redirect the jury on this aspect of his charge.”
In fairness to the learned trial judge in this case neither was any requisition made to him by counsel on this particular matter and indeed there was initially some confusion as to what evidence had actually been given during the trial and of course this court can only be concerned with the evidence that was before the jury. However, as in the O’Reilly case, this court does not consider that failure to requisition the trial judge to recharge the jury on such a fundamental matter in the circumstances of this particular case should affect its conclusions in that regard.
In Attorney General –v- Fagan one of the grounds for setting aside the jury’s verdict was that “The full circumstances of the identification relied on were not presented in evidence to the jury and features of the particular identification that might have persuaded the jury to reject it were not highlighted for the jury”. Although there were other factors and grounds in that case the court is of the view that that observation can in its own terms be applied to the circumstances of this case.
Accordingly, in the light of frailties concerning the evidence of identification to which the court has referred in the earlier part of its judgment, the absence of an appropriate direction to the jury must be considered as an error fundamental to the fairness of the trial and accordingly the verdict of the jury must be considered as unsafe. The court, therefore, will treat this hearing of the application for leave to appeal as the hearing of the appeal, the appeal will be allowed and the conviction and sentence of six weeks imprisonment will be quashed. In all the circumstances of the case, the court does not consider it should order a retrial.
In light of the above conclusion it is not necessary to deal with the other grounds of appeal which in any event where the subject of minimal argument on both sides. The court does feel it should clarify one matter concerning the fourth ground of appeal which purports to assert that the learned trial judge told the jury “not to be concerned if they made a mistake in their decision as a higher court than this would rectify their verdict if they were wrong.” This is a misstatement of what the trial judge told the jury. In fact what occurred was that he properly informed the jury that it was his task, as trial judge, to direct them on questions of law and went on to add “… should I give you a misdirection on a question of law and as a result the accused is convicted, then a higher court will put me right”. That is an entirely a different matter.