Court of Appeal
Criminal Appeals Nos. 3 and 4 of 1994
9th May, 1994
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES, J.A.

Mr. K. Anderson appearing on behalf of Appellant Myvett
Mr. F. Lumor appearing on behalf of Appellant Santos
Mr. E. Thompson appearing on behalf of the Respondent

Appeal - Criminal law - Trial judge erred in permitting dock identification - Dock identification must be by features of the accused person - No identification parade held - Practice to identify accused in the dock for the first time is undesirable - Prejudicial effect outweighs probative value - Appeal allow - Conviction quashed.

J U D G M E N T

The appellants were convicted of two offences, one of maim contrary to section 78 of the Criminal Code and the other of use of deadly means of harm contrary to section 79 of that Code. The offences arose out of an incident which took place across the street from the Parrot Bar in Belize City on August 18, 1991.

A number of grounds of appeal were filed on behalf of both appellants but for the purposes of this appeal only two need to be considered namely that the trial judge erred in permitting a dock identification of the appellant Lincoln Myvett and that the trial judge failed to withdraw the case from the consideration of the Jury when there was evidence that the police and/or the Crown had failed to observe the guidelines for the identification of suspects.

The facts need only briefly be recounted. Staine, the injured victim, had earlier had a fight in the Parrot Bar with a taxi?driver Jeffrey Holiday. The differences between them had apparently been settled and they had parted with Holiday telling Staine that they were "bally" meaning friends.

Staine had then walked across the street with a bottle of rum he had been drinking in the bar to join some friends who were sitting there also drinking.

Shortly afterwards he saw Holiday's taxi driving up with Holiday driving. As the taxi came up Holiday pointed at him, drove past and stopped some 10 yards from him. As the taxi stopped four men got out, two from each of the front doors and two from each of the back doors. They were armed with machetes. They all rushed at him making "whopping" blows with the machetes. He had no weapon. He raised his arm to ward a blow aimed at his head. As a result he suffered a chop on the right arm which almost severed the arm at the wrist. It was later surgically amputated. After his arm had been chopped Holiday told the men "Let's go" and they left in the taxi in which they had come.

Staine described the person who came out from the driver's side door as a "dark guy". He had seen that person on visits to the gas station to buy lubricating oil. He did not know the person's name. The men who came out of the back doors he described as "a fair skin one and strapping dark one." He did not know the names of either and had never spoken to any one of these person's before but he knew their faces. The incident had taken place about 4: 00 p.m. It was a clear day and his view of his attackers was unobstructed.

The evidence of identification of the appellant Lincoln Myvett reads ??

"Seeing him often enough I must know him. At that time I did not know his name. I saw that person afterwards in a car parked in front of Steve Craig's Lumber Yard. I also saw him out there when I passed nearby by Chou Saan by Majestic Alley. I gave the name of that person to the Police about three months after the incident. I got to find out the name of the person by brother Dean Augustus. I gave the name Lincoln Myvett to the Police.

Q. Do you see in Court that person here today?
A. Yes that person there."

Defence Counsel objected to this as being a dock identification. Counsel for the Crown is recorded as saying that the Crown was trying to prove visual identification of one of the witness' attacked.

The trial judge's ruling is noted as follows ?

"The identification is not by name but by features. The objection is overruled."

It seems to us indisputable that the identification which purported to take place in the Court was a dock identification. A dock identification must necessarily be by the features of the accused person.

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 safe?guards by placing the suspect in a line made up of like looking suspects, the English procedure is in practice followed here in Belize.

The fact that no identification parade had been held was confirmed by Staine. He is recorded as stating ??

"I agree that today is the second time since the 18th of August that 1 pointed to these two fellows as two of the ones that attacked me. The first time was at the P. I. on 2nd November 1993."

That would have been 2 ½ years after the incident. This was clearly a case in which an identification parade should have been held. Staine did not know his attackers by name. He appears to have been certain that they were persons whom he had seen before and whom he could recognize but his descriptions of them to the police were conspicuously lacking in detail. His ability to recognize his assailants should have been put to the test at a parade.

The problems of identification are aggravated by Staine's evidence that all the names he had given to the Court at the hearing he had got from his brother. The evidence reads ??

"Between the incident and the report I had already known the faces, all I had to do was to talk to my little brother as he is a gang banger."

The brother was not present at the time of the attack. The process by which the names became attached to the faces which Staine purported to remember remains necessarily undisclosed.

The investigating officer was asked why he had not held an identification parade. He replied ??

"Because 1 was sure of the names and the identifies of defendants along with the complainant."

Later he stated to the Court ??

"I did my own investigation and was sure of the attackers. I got these names from other persons who did not wish to give any statement or come to court, they were afraid."

This emphasises how seriously flawed was the entire approach to the process of identification in this case. Staine was invited to identify the Appellants for the first time in the dock. This practice has been described as undesirable ? R. v. Cartwright (1914) 10 Cr. App. R. 219.

Its Prejudicial effect outweighs its probative value and in this case the judge could properly have ruled it inadmissible.

In any event at the close ?of the case of the prosecution no evidence confirmatory of the identification had been adduced. Such evidence as has been adduced established that there had been no good reason for not holding an identification parade and raised justifiable suspicions about the manner in which Staine had been able to attach names to the faces which he said he knew. The submission that there was no case to answer should have been accepted. The quality of the identification evidence was totally unsatisfactory.

Having read the record it was clear that there would be difficulty in sustaining the convictions. Accordingly on the opening of the appeal counsel for the Crown was asked to advance his arguments in support of the conviction. He did not quite properly seek to support it.

For the reasons hereinabove set out we allowed the appeals and quashed the conviction.

--------- OO ---------