Court of Appeal
Criminal Appeal No. 7 of 1980
19th June, 1980.
CLIFFORD INNISS J. A. (P.)
P. T. GEORGES (J. A.)
SAMUEL H. GRAHAM (J. A.)

Criminal Law - Rape - Appeal against conviction - Issue of identification of the Appellant - Appeal allowed - Conviction quashed and Appellant aquitted.

J U D G M E N T

The Appellant was charged with raping Sherry Middleton on November 11, 1979. He was convicted and sentenced to 5 years imprisonment. His notice of appeal states that he desired to appeal against both conviction and sentence but he stated quite positively to the Court that it was his intention to appeal against conviction alone.

Two grounds appear in his notice of appeal. The first complains that the evidence of the complainant differed from that of the other witnesses and lacked corroboration needed to obtain a conviction. The second stated that the Trial Judge had failed to read the entire evidence in the case to the Jury before they retired to decide upon their verdict. In addressing the Court, the Appellant sought to draw our attention to various bits of evidence which did not fit easily together or which struck him as implausible. There was no particular merit in his argument as the issues he raised were all matters which the Jury would have considered and had they found against him on a proper direction, the verdict would have been unassailable.

At the close of his argument, the Court raised what appeared to be a grave deficiency in the summingup. Mr. Ghandi, the Acting Director of Public Prosecution, quite properly agreed that they existed and that he would not be supporting the conviction.

The crux of the case was identification. Sherry Middleton's story was that she had left a Disco Club about 3:15 a.m. with a male friend and they went walking along West Street. The friend bought chicken which they ate and then the friend left her. Suddenly as she was walking she was grabbed from behind by the neck, hauled off the road underneath a house the flooring of which was raised some 3 1/2 feet from the ground and raped. She did not recognise her assailant while he was actually raping her. He was choking her and she was fighting for her life. He was on top of her for about three minutes. After the assailant let her go, she saw his face. She is recorded as saying:

"It was David Gabb. It is the accused."

After he got off her, he jumped a fence. She ran until she reached the police station. Maureen Leslie, a policewoman, testified that Sherry Middleton reached the police station at 6:10 a.m. from which it can be inferred that the rape must have taken place shortly before 6:00 a.m.

Sherry Middleton stated that she had seen the Appellant once before - the first time being

"One Sunday morning when he passed by my sister's house".

It was not made clear whether this meant that the Appellant visited the sister or merely went by her house. There was no evidence that she knew his name at the time the rape took place.

"Her evidence was supported by that of Mavis Watson who testified that on that morning she heard a bawling. She opened her back door and as she did so, she saw a man coming over the fence. In her words -

"Then he looked up and our two eyes met".

The man jumped over the fence and ran to the other corner. He fell on the ground and hit a gas tank. She told him -

"Boy, don't pass through here".

He did, however, pass through. She said she had a look at the person's face. It was the Accused. She had never seen him before.

These events took place on November 11, 1979. The Accused was arrested on December 14, 1979. No identification parade was ever held. Indeed the evidence does not disclose how it came about that he was arrested. The Appellant gave no statement on arrest. He made a statement from the dock putting up an alibi which was not supported by witnesses.

This was a case in which there was particular need for the Trial Judge to warn the Jury about the possibility of a mistaken identification. The Appellant was not represented at his trial and this circumstance would accentuate the need to bring to the attention of the Jury the factors which might make identification unreliable.

The Trial Judge did deal with these matters towards the end of the summing-up in these words -

"More important, finally, from the Defence point of view: The evidence for careful scrutiny by you is the evidence of identity. Who was the person that committed this act. Sherry says it was David Gabb and Mavis says she saw him that morning coming over the paling. And you have to look at this carefully to determine whether the persons who said they saw the Accused Gabb satisfied you that they were well able to see the person and tell you who the person was. And in an answer again to the Jury, Sherry says that morning was the second time that she had seen Gabb. She had seen him once before, a Sunday morning, when he passed by her sister's house. Sunday morning before when he was passing by her sister's house and that morning after he got up after using her. Mavis says she hadn't seen him before, but the person that she saw was him. He was clean shaven, had no hair on the head or on the face, and she saw him from a distance of 8 feet. So it is for you to determine whether in the circumstances you are satisfied that they were well able to identify the person."

This warning in our view was inadequate In particular, the Trial Judge should have pointed out to the Jury that no identification parades had been held and that at least in the case of Mavis Watson that was absolutely essential since she had never seen the Appellant before. She would have seen him next at the dock at the preliminary inquiry when she would have identified him as the person.

The position in England as stated by the Attorney General in answer to questions in the House of Commons is set out in Archbold's 40th Edition at paragraph 1348 guideline 3:

"The Director's (of Public Prosecution) representative at the committal proceedings, or Crown Counsel at the subsequent trial, will not invite a witness as to identity, who had not previously identified the accused at all identification parade, to make a dock identification unless the witness' attendance at a parade was unnecessary or impracticable, or there are exceptional circumstances."

This guideline law officers here would do well to follow. We are satisfied on the evidence that neither in the case of Sherry Middleton nor that of Mavis Watson can it be said that an identification parade was unnecessary. There is no evidence to show that it was impracticable and the record reveals no exceptional circumstances. A dock identification of this sort makes identification evidence practically worthless and the Trial Judge should have so directed the Jury. His failure to do so is in our view, sufficient to vitiate the conviction.

The Trial Judge's treatment of the issue of identification fell short also in other regards. We have in previous judgments stated that the guidelines recommended by the Court of Appeal in England in Turnbull (1976) 63 Cr. App. R. at p.137 ought to be followed here and we draw attention to them again. -

"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 also 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 reasons to believe that there is such a materials 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 sometime 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 mistaken identification is lessened; but the poorer the quality, the greater the danger."

The circumstances of this case required the closest adherence to the methodology described in the quotation. Accordingly the appeal must be allowed. The conviction is quashed and it is directed that a verdict of acquittal be entered.

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