Privy Council Appeal No. 31 of 2002
Aurelio Pop Appellant
The Queen Respondent
THE COURT OF APPEAL OF BELIZE
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 22nd May 2003
Present at the hearing:-
Lord Hope of Craighead
Lord Lloyd of Berwick
Lord Rodger of Earlsferry
Sir Andrew Leggatt
Sir Swinton Thomas
[Delivered by Lord Rodger of Earlsferry]
"The detailed code adopted in England for the holding of identification parades to have suspects identified is intended to ensure that the identification of a suspect by a witness takes place in circumstances where the recollection of the identifying witness is tested objectively under safeguards by placing the suspect in a line made up of like looking suspects, the English procedure is in practice followed here in Belize."
The facts that no identification parade had been held and that Adolphus identified the appellant when he was in the dock did not make his evidence on the point inadmissible. It did mean, however, that in his directions to the jury the judge should have made it plain that the normal and proper practice was to hold an identification parade. He should have gone on to warn the jury of the dangers of identification without a parade and should have explained to them the potential advantage of an inconclusive parade to a defendant such as the appellant. For these reasons, he should have explained, this kind of evidence was undesirable in principle and the jury would require to approach it with great care: R v Graham  Crim LR 212 and Williams (Noel) v The Queen  1 WLR 548.
"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
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 relatives 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."
The Board has had occasion to endorse and apply Lord Widgery's guidance in a number of cases. Their Lordships need only draw attention to some of the more significant passages for present purposes. In the judgment given by Lord Ackner in Reid (Junior) v The Queen  1 AC 363 the Board surveyed the relevant case law and underlined the importance of the various factors highlighted in Turnbull. In particular they referred to the judgment of Lord Griffiths in Scott v The Queen  AC 1242, 1261 where his Lordship said:
"… if convictions are to be allowed upon uncorroborated identification evidence there must be a strict insistence upon a judge giving a clear warning of the danger of a mistaken identification which the jury must consider before arriving at their verdict and that it would only be in the most exceptional circumstances that a conviction based on uncorrroborated identification evidence should be sustained in the absence of such a warning."
Having considered the decision of the Supreme Court of New South Wales in R v De-Cressac  1 NSWLR 381, in Reid (Junior) Lord Ackner observed,  1 AC 363, 384:
"Their Lordships have no hesitation in concluding that a significant failure to follow the guidelines laid down in R v Turnbull will cause the conviction to be quashed because it will have resulted in a substantial miscarriage of justice."
Finally, in Shand v The Queen  1 WLR 67, 72, Lord Slynn of Hadley, giving the judgment of the Board, said:
"The importance in identification cases of giving the Turnbull warning has been frequently stated and it clearly now applies to recognition as well as to pure identification cases. It is, however, accepted that no precise form of words need be used as long as the essential elements of the warning are pointed out to the jury. The cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence. In the latter type of case the judge should normally, and even in the exceptional case would be wise to, tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of mistake referred to in R v Turnbull  QB 224."
"Now, members of the jury, this evidence which has come forth from the witness Adolphus is evidence of recognition. Evidence of recognition, members of the jury, is not the same as evidence of identification which can be of fleeting glance identification and there are certain procedures for that. In this case, members of the jury, the witness has testified that he knew this person, this accused person for ten years, went to school together and they lived in the same village and at the time when he saw him there was adequate light, there were two street lights and that given the time when he saw him the first time and up to the time when he fired the last shot you, members of the jury, can conclude that that cannot be a two seconds view of the accused, certainly it has to be more than a fleeting glance. In my view there was sufficient time for him to have seen and recognise the accused. But, members of the jury, I must tell you also that mistakes in recognition even of close friends and relatives are sometimes made so you must be very careful when dealing with this evidence of recognition. Mr Sampson told you that people have mistaken him for a gentleman by the name of Godfrey Ramos. I myself have been mistaken by other people, I have to tell them, 'No, I am better looking than he is' and I myself have mistaken one person for another where the lighting situation was far from being dark. So, I tell you all these things, members of the jury, because I want you, the same way as Mr Sampson want you, to be absolutely sure that there was no mistake when it came to the recognition of this accused person on the 7th of July 1995 when the witness said he saw when he fired two shots on the person of Chavez with the result that he died."
"In our view the judge's direction was adequate in the circumstances of this case and is clearly in accordance with the general direction recommended by Lord Widgery in Turnbull. Further, although the full Turnbull warning was not given, the circumstances in which the recognition of the appellant took place do, in our view, constitute the exceptional circumstances in which it has been held that a full Turnbull warning need not be given.
The recognition was by an eye-witness who had known the appellant for years. The distance between the eye-witness and the appellant was not great. The eye-witness's observation of the appellant were not fleeting glances. The eye-witness testified that he had recognised the appellant with the aid of two bright street lamps and the eye-witness had an unobstructed view of the appellant.
We are therefore of the opinion that the quality of the evidence of the visual identification of the appellant by Martin Adolphus was good and that the trial judge did in effect warn the jury of the special need for caution before accepting the evidence of recognition. We are also satisfied after a careful scrutiny of the trial judge's directions, that those directions dealt with all the essential matters relating to the weaknesses and dangers of evidence of recognition generally, and in the particular circumstances of this case."