UKPC 12
Privy Council Appeal No 0112 of 2010
Terrell Neilly v The Queen
From the Court of Appeal of the Commonwealth of the Bahamas
Sir Stanley Burnton
JUDGMENT DELIVERED BY
SIR STANLEY BURNTON
10 May 2012
Heard on 20-21 March 2012
David Farrer QC
(Instructed by S J Berwin LLP)
(Instructed by Charles Russell LLP)
SIR STANLEY BURNTON:
(a) The admission of the dock identification
"I am going -- I'm satisfied that the parameters which are set in the case of R v Turnbull have been laid. I am going to allow, in my discretion, the dock identification by Mr. Fernander of the person whom he says held the Uzi or the machine gun, and whom he said he observed for two to three minutes, and whom he said was at one point close - as close as two feet away from him. I am going to, as I said, exercise my discretion and allow the dock identification , for what it's worth."
(b) The submission of no case
"With respect to Terrell Neely, I simply find the evidence of a sufficient quality to safely leave to the jury to assess. I am satisfied that all of the factors which Turnbull says ought to be present are present, and I am going to leave that evidence to them. I accept that there is one witness that the identification was not tested on identification parade, however, I am satisfied that in the circumstances that there was a good reason for not holding the ID parade for Neely. In addition to that, there is the evidence of recent possession of some of the goods allegedly stolen which may support the correctness of the identification by Mr. Fernander. In the circumstances, I find that Terrell Neely has a case to answer on the counts of robbery and I am going to leave those to the jury for their consideration."
(c) The summing up
"With respect to the identification evidence, I must point out to you just one weakness in the evidence of Larry Fernander, and that is that he did not attend an ID parade, and so his ability to identify the accused person from a number of other persons was not, in fact, tested.
Now, it is usual that there is an ID parade if the police feel that it's necessary. You recall in this case the fact was that Neely was hospitalized, and that his evidence here is from the 17th to the 27th. Whether that is a reasonable explanation or not is a question for you. But you, at the end of the day, must determine whether you are sure that the evidence of Larry Fernander in relation to the identification of Mr. Neely was correct. That is the weakness.
Now, if, after considering all of these matters which I have indicated to you, you conclude that the quality of the ID evidence is good, then you may convict on that evidence alone, notwithstanding that you find it is not supported by any other evidence, and provided you warn yourselves of the danger.
Now, as I've said, there's other evidence which is capable of supporting that evidence. If you decide that that evidence is not -- you don't accept that evidence, then you are left only with the evidence of identification by those three witnesses. And, in any event, you must be careful when you come to consider that identification evidence.
I also remind you that this matter is alleged to have happened some 20 months ago, and you're going to have to make allowances for the fact that with the passage of time memories do fade, and witnesses cannot be expected to remember with crystal clarity what has happened 20 months ago."
"He told you he did not attend an ID parade, but he identified Mr Neely as the man who took his bracelet, wallet and radio and the man who had the chrome gun, the chrome gun. You recall later he said that he as wrong about that. That the man was the man with the machine gun, the man he identified was the man with the machine gun as he had first said in his examination in chief. So it's a question for you. He did say on two occasions that it was the man with the machine gun that he observed and identified. He later said it was the man with the shiny gun, then corrected that to say it was, in fact the man with the machine gun. It's a question for you."
The judgment of the Court of Appeal
The contentions before the Board
a) The judge had erred in law in allowing the dock identification to be adduced before the jury.
b) The judge erred in rejecting the submission on behalf of the Appellant that there was no case to answer.
c) The judge should not have withdrawn the counts of receiving from the jury.
d) The summing up of the identification evidence against the Appellant was inadequate.
e) It followed that the convictions for armed robbery were unsafe, and they should be quashed.
a) The judge was entitled, in the exercise of her discretion, to allow the dock identification to go before the jury.
b) She was similarly entitled to reject the submission on behalf of the Appellant at the close of the prosecution case.
c) The withdrawal of the count of receiving stolen property did not affect the safety of the convictions for armed robbery.
d) While he accepted that the direction to the jury was inadequate, on the evidence as a whole the convictions for robbery were safe; the Board should apply the proviso and the appeal should therefore be dismissed.
"…identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the accused among a number of stand-ins of generally similar appearance provides a check on the accuracy of the witness's identification by reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."
The admission of the dock identification in this case
The summing up
"…Where it is decided that the evidence [i.e., a dock identification] may be admitted, it will always be necessary to give the jury careful directions as to the dangers of relying on that evidence and in particular to warn them of the disadvantages to the accused of having been denied the opportunity of participating in an identification parade, if indeed he has been deprived of that opportunity. In such circumstances the judge should draw directly to the attention of the jury that the possibility of an inconclusive result to an identification parade, if it had materialised, could have been deployed on the accused's behalf to cast doubt on the accuracy of any subsequent identification. The jury should also be reminded of the obvious danger that a defendant occupying the dock might automatically be assumed by even a well-intentioned eye-witness to be the person who had committed the crime with which he or she was charged."
The withdrawal from the jury of the receiving count
"Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
The application of the proviso