The decision of the English Court of Appeal in R v Turnbull  QB 224 contained a timely direction of the attention of courts in cases turning on the identification of a suspect by a witness to the importance of careful assessment by trial judges of the reliability of the evidence of identification and equally careful direction of juries in their approach to that evidence. Experience prior to that decision had shown the risks attaching to acceptance of identification evidence, as evidenced by a number of cases in which miscarriages of justice had occurred. The Turnbull judgment has led to the adoption of a substantially more critical evaluation of the testimony of witnesses who purport to identify suspects as the perpetrators of offences and the acceptance by trial judges and appellate courts of the need for abundant care in dealing with that testimony, most particularly where it is not corroborated by independent evidence. The present appeal provides yet another example of the difficulties which may be encountered in the course of a trial turning on identification.
The appellant Garnett Edwards was on 15 March 2002 convicted of the capital murder of Dougal Wright after a trial in the Home Circuit Court sitting at Kingston, Jamaica before Marsh J and a jury, and sentenced to death. His appeal against conviction was dismissed at the conclusion of the hearing on 25 June 2003 and the sentence was affirmed. The Court of Appeal set out its reasons in a written judgment given on 19 December 2003. Special leave to appeal as a poor person to the Privy Council was granted on 27 July 2004.
The fatal shooting took place on 13 February 1999 in a bar known as the Mango Tree Bar. Dougal Wright and Donovan Gilroy Bailey, the latter being then a police sergeant and at the time of trial an inspector, met on that date about 10.30 am in a store known as the Prepack Wholesale and Retail Establishment. Bailey was in plain clothes at the time and unarmed. The two men were friends of some years’ standing and when they had made their purchases they adjourned to the Mango Tree Bar, which was across the road from the store. They entered the bar together and went up to the bar counter, where Wright ordered drinks. They were standing facing the counter, with Wright about two feet to Bailey’s left, when Bailey heard a voice behind him say “Big man, give me what you have”. He turned round suddenly and saw a man pointing a gun, which he described as a 9 mm pistol, at his chest. He held his hand in the air and replied “Me nuh have nutten”. Bailey stated in evidence that he kept staring at the person, concentrating his focus on his face and chest region, down to the firearm. He said that he kept staring for a while at the man, who then said “Pussyhole, lif’ up yuh shut.” Bailey hesitated awhile, then instead of going towards his shirt made a slight movement to his left. He made a grab at the firearm, but missed, then heard an explosion and felt a burning sensation to the right side of his stomach. He held his side and ran outside and into the Prepack store, with blood running down his side. He was taken to hospital, where he underwent an emergency operation and was detained for a total of 31 days. Bailey said in evidence that the time span of the whole incident was about two minutes and in cross-examination said that it had happened “within two minutes”. He stated that the time he focused on the man’s face was about one and a half minutes. These estimates were challenged in cross-examination and do appear to be unsustainably long.
The injury sustained by Bailey was a gunshot wound. The bullet entered the right upper quadrant of the abdomen at the midline, travelled through his body and exited through the back just over the right lateral aspect in the area of T10 to T12. It then entered Wright’s body in the right anterior chest, directed downwards, backward and to the left. It travelled through underlying tissues, the thoracic cavity, both lungs and the heart and lodged in the soft tissues over the left flank of the chest. The spent bullet was recovered at the post mortem examination, but could not be produced at trial and there was no evidence of its having been the subject of forensic examination. Death was as a result of this gunshot wound.
In the course of his examination in chief Bailey was asked about a statement which he gave to the police on 18 February 1999 while in hospital, and retailed to the court the description which he had then given of the man who shot him He said:
He is of a dark-brown complexion, low cut hair, clean face, oval shape face, average built, wearing a blue shirt, m’lord. The voice ordinary, not rough, not soft, but moderate, m’lord.
He described him as about five feet six inches tall and about 23 years of age. He had never seen him before the time of the shooting. Bailey was unable to say, when asked in cross-examination, whether the man was wearing trousers or shorts or whether he wore shoes, but claimed that that was because he had been focusing on his face and upper body and not because the incident happened so quickly.
On 14 April 1999, some four weeks after his discharge from hospital, Bailey was driving his private car about 2 pm past the Mango Tree Bar. He saw a man standing in the vicinity of the bar and identified him as the man who had shot him on 13 February. He was about 22 yards away from Bailey when the latter first saw him. Bailey drove slowly past him, at a speed under 10 miles per hour, which he described as “barely crawling”, and stared straight at his face, coming within about ten feet as he passed him. He said that he had him in his view for a time in the region of two minutes. He was bareheaded and was not wearing anything on his face. Bailey said in evidence that the only difference in the man’s appearance since February was that his hair was a little taller.
Bailey kept driving along the road and saw a police vehicle at an intersection about 100 yards from the man. He signalled the driver to stop, told him what he had observed and pointed out the man, who was still standing in the same place. He then left and went on with his business, leaving the officers to deal with the situation. After completing his business he went home. About 4 pm that afternoon he received a telephone call asking him to go to Cross Roads police station. On arrival there he saw the same man, whom he identified in court as the appellant, sitting handcuffed on a bench in the guard room. He identified him to a police officer there, as the man whom he had seen earlier that afternoon outside the Mango Tree Bar. He said in the appellant’s presence “This is the man that shot me in February”, but did not recall the appellant making any response. He did not make an entry in the station diary, stating in evidence that that was only done by investigators and was not required of him.
Detective Sergeant Ebanks was called by the prosecution to deal with the investigation of the killing. He was called to the scene, where he found the deceased lying face down in a pool of blood. He did not find any spent shells at the scene. He recorded statements during that day, including one from the barmaid Miss Jennifer Smith, who subsequently died before trial on 14 October 2001.
DS Ebanks stated that on 15 February 1999 he received certain information in respect of the appellant Garnett Edwards, otherwise known as “Manbug”. Based on this information he obtained and prepared a warrant for his arrest. The appellant’s counsel cross-examined the witness in some detail on the warrant, apparently in order to establish a minor discrepancy between the evidence which he gave at trial and a statement made previously by him in which he referred to his source of knowledge being information and a statement. Counsel then asked for the warrant to be put in evidence and the judge accepted it. In re-examination Crown counsel asked the witness whether he had sought a statement from the person who gave him the information, to which he said that the person was not willing to come forward. No objection was taken to the admission of this evidence and the judge did not intervene to prevent its reception.
DS Ebanks arrested the appellant on 14 April 1999, cautioned him and told him that he had a warrant for his arrest for the murder of Mr. Dougal Wright. The appellant replied “God know, mi nuh kill nobody”, but made no other statement. The witness was asked in examination in chief whether he thought that it was necessary to have held an identification parade, to which he replied it was not, stating as his reason “the fact that the accused man was pointed out by Sergeant Bailey shortly after the incident was so fresh in his mind.” He added in response to a further question that the main reason for holding a parade would be that the question of identity was not clear.
An application was made to the Board to admit the statement made by Jennifer Smith as fresh evidence. It was originally based on an averment that it had not been disclosed by the prosecution before trial, but correspondence was produced to the Board which referred to the sending of a copy on 28 March 2001 to the appellant’s attorney who conducted his case at trial. Their Lordships nevertheless decided in the interests of justice to admit the statement in evidence. A photograph of the appellant taken on 15 March 2002 and an accompanying affidavit were also put before the Board without objection. The photograph showed what was described as a birthmark at the lower corner of his right eye, which was measured at between one and a half and two centimetres in length. It was stated in the affidavit to be a plain and obvious feature, clearly visible from a distance of ten feet.
In the statement Miss Smith stated that there were four other men, all of whom were known to her, in the bar at the time. It appeared from her account that the incident happened fairly quickly. She stated that she took an order for beer from Wright, when both he and Bailey were sitting on stools at the bar. She turned her back on the bar while she opened the cooler and took out the beer. She heard an explosion as she was taking out the second bottle and looked round. She did not see Wright or his companion on the stools, but saw a man standing at the entrance to the bar. The only description she was able to give of him was that he had a black complexion, and was about five feet five inches in height and of medium build. She could not describe his clothing and would not recognise him again. There was a discrepancy between Miss Smith’s statement and Bailey’s evidence, in that she described Wright and Bailey as sitting on bar stools, whereas in Bailey’s account they were standing up. Moreover, she said that she saw a police officer pick up a spent shell, whereas DS Ebanks had said that he did not pick up any shells.
No application appears to have been made to the judge at the close of the Crown case for a ruling that the appellant had no case to answer, and the trial proceeded. The appellant did not give sworn evidence or call any witnesses, but gave an unsworn statement from the dock, in which he denied any connection with the crime. He averred that he had been beaten by the police after his arrest and that although he had been informed that he would be going on an identity parade none was held.
In his summing-up to the jury the judge defined the crime of murder and stated (Record p 162):
Now, in order to amount to murder, the killing must be the result of a deliberate and voluntary act, that is to say, it was not done by accident. Now, Mr. Foreman and your members, where death results by an accident, it is no offence.
He again said at page 169:
The prosecution must also prove to you that the accused killed Mr. Wright by a deliberate act, in other words, it was not accidental, it was intended .... So the prosecution must prove to you that the act was not involuntary, in other words that it was deliberately done.
No application was made to the judge to leave to the jury the possibility that they might bring in a verdict of manslaughter, on the basis of causing death by an unlawful and dangerous act, nor did the judge advert to that possibility at any stage in his summing-up.
The judge gave the jury a direction on identification based on the Turnbull requirements, which it is necessary to quote in full (Record, pp 174-8):
Now, Mr. Foreman and your members, this is a case, or this is a trial where the case of the accused rests wholly on the correctness of the identification of him which the defence questions and alleges to be mistaken. Remember the suggestion that was made to Inspector Bailey, the only eyewitness in the case that he was honestly mistaken. I must warn you of the special need for caution before you can convict the accused on reliance of the evidence of identification and that is because an honest witness can make a mistaken identification.
Mr. Foreman and your members, it might be your experience that you may know somebody very well and you saw somebody and you called to them thinking it’s the person who you know very well and it turns out to be somebody else. So, you must remember Mr. Foreman and your members, that a most convincing witness can be honestly mistaken so you therefore look at the circumstances in which the witness purports to identify the accused. How long did he have to observe the person whom he say was the accused? How far away was he from the accused when he purports to identify him? What was the nature of the lighting? Was there anything that would interfere with that observation? Was there anything on the accused man’s head? Anything on the accused man’s face which would have made identification difficult or not possible? How long was it between the original observation and the identification to the police? Was there any marked difference between the description given by the witness to the police and the appearance of the defendant? And, you should also look at any specific weakness which may exist in the evidence which the prosecution seeks to bring before you as evidence of identification. And are those – and I will go straight, Mr. Foreman and your members, to Inspector Donovan Bailey. Inspector Bailey tells us that this incident took place a little after – 10.30 in the morning, in February, and he says that the light in the morning, and I would like to use his words ‘was clear.’
Remember he tells us that when he heard the voice behind him, saying, “Big man, give me what you have,” he spun around and he saw the accused man pointing a firearm at him. He says, the accused man was about two arm’s length from him and he said he kept staring at the person.
Now, Mr. Foreman and your members, this is the witness who up the thirteenth of February, 1999, had in excess of 28 years service as a policeman or so he said. He said that he kept staring at the accused man for a while and it was, and that the accused man said, “Pussy hole, lift up your shirt.” He said he hesitated and instead of going towards his shirt he said he made a slight movement to the left.
Now, Mr. Foreman and your members, you remember in cross-examination yesterday that the Inspector was asked to use the clock and to indicate by the clock exactly what took place in relation to time, but Mr. Foreman and your members, that is essentially a matter for you, but you will think that the witness could repeat exactly what is alleged to have taken place that morning in regards to time but when it comes to time, what did he say? He said the incident took place and lasted for about two minutes and he was asked a direct question as to how long of that two minutes did he see the accused man’s face? He said for about one and a half minutes. He was asked questions in cross-examination about what clothes the man was wearing, he said the whether the man was wearing trousers or shorts and his reply was that his attention was directed to the man from the gun up, not below that. So, Mr. Foreman and your members that is a matter for you. What you will make of the evidence. Is he a witness who is honest mistaken? Because, it is going to be your responsibility to ask yourselves the question, ‘Am I satisfied beyond a reasonable doubt that the identification of the accused man is a correct identification?’
Because very candidly Inspector Bailey agree that he was frightened and it would and extremely unusual if somebody goes shopping on a particular day is about to have a drink with a friend, hears a voice, turns around only to find that he is facing a firearm; not to be frightened, but he said he was frightened because the fact that he was frightened did not hamper his ability to honestly and accurately identify the accused? That is a matter for you.
Their Lordships will return later to consideration of the terms of this direction, but the burden of the complaint made on behalf of the appellant was that while it correctly set out the proper approach to the consideration of identification evidence, it fell short of giving the jury sufficient assistance in analysing the evidence and relating it to the principles expressed.
The judge dealt with Bailey’s sighting on 14 April 1999 of the man whom he identified as the man who had shot him on 13 February. He directed the jury on their approach to the appellant’s unsworn statement from the dock and turned to the question of identification parades. In a passage which was criticised by the appellant’s counsel he said (Record, pp 202-3):
Now, Sergeant Ebanks was asked by learned Counsel for the Prosecution about an Identification Parade. He said he didn’t think it was necessary to hold one, as the accused had been pointed out by Sergeant Bailey shortly after the incident.
Now, Mr. Foreman and your Members of the Jury, as I told you before, common sense is an important consideration when you are assessing evidence. Now, if somebody has pointed John Brown out as John Brown who did something was there any point in holding a parade, putting up a number of other persons if the person had pointed him out already, to point him out as the person?
The sergeant went on to tell you – he said that identification parades are held when the question of identification is not clear and that is the main reason. In this particular case, you would have seen that Inspector Bailey said that he had seen the accused man on that day in April dressed in the lime green trousers, white shirt and he pointed him out to the police officer. So, it is matter entirely for you.
The Court of Appeal (Bingham and Walker JJA and Cooke JA (Ag)) set out their reasons for dismissing the appellant’s appeal in a written judgment delivered on 19 December 2003. It is apparent from the terms of the judgment that by no means all the points which counsel advanced before the Board were taken in the Court of Appeal. The three main grounds, the only ones considered by the court, were,
first, the judge’s failure to withdraw the case from the jury on the Turnbull basis;
secondly, the judge’s failure to leave the issue of accident to the jury, particularly in relation to the issue whether the killing was the consequence of a deliberate and voluntary act of the gunman; and
thirdly, that the directions on capital murder were defective.
The third ground was summarily dismissed by the Court of Appeal and not argued before the Board. On the second ground, the court held (Bingham JA’s judgment, Record pp 223-4):
Ground 2, concerned as it was with a complaint of the learned trial judge’s failure to leave the defence of accident to the jury, was founded, no doubt, on the premise that the appellant had discharged the firearm at inspector Bailey and not at the deceased.
This ground of complaint was misconceived and is without merit. It failed to take into account the doctrine of transferred malice as it applied to the facts and circumstances of the case. Following his directions on capital murder the learned trial judge then went right to the heart of the matter when at page 162 he said:
These directions are sufficient to dispose of ground 2.
The appellant’s counsel criticised this passage heavily, on the basis that it had simply missed the point being made, which was not related to transferred malice.
On the issue of the reliability of Bailey’s identification the court held that it was not a fleeting glimpse type of case or one of a sighting in difficult conditions which would have required the judge to withdraw it from the jury in accordance with the Turnbull principles. While discounting the inspector’s evidence about the length of time during which he observed the gunman, Bingham JA emphasised the calmness of his demeanour and his concentration on observing the gunman’s face and upper body. He rehearsed portions of the judge’s summing-up and continued (Record p 228):
Inspector Bailey’s testimony remained unshaken and the jury must have been convinced that they could safely regard that testimony as credible and reliable not only as to the events as they unfolded on the morning of the incident at the bar but, more importantly, as to his identification of the appellant.
Mr. Thornton QC for the appellant grouped his submissions to the Board under four main heads:
the lack of clear or satisfactory identification, coupled with a number of irregularities in relation to the evidence presented to the jury, which should have caused the judge to withdraw the case from the jury or discharge them;
the inadequacy of the judge’s directions to the jury in relation to the identification evidence;
failure to give the jury directions in relation to the possibility of bringing in a verdict of manslaughter;
the imposition of the mandatory death sentence.
In the light of the Board’s decision in Watson v The Queen  UKPC 34;  1 AC 472 it was not necessary for counsel to argue or the Board to consider this ground.
Their Lordships are satisfied that the identification evidence was not so slender that the judge was required on that ground alone to withdraw the case from the jury and direct a verdict of not guilty. Bailey had a close and unimpeded view of the gunman in lighting conditions of which no complaint is made, and his evidence was that he concentrated his gaze upon him. While he undoubtedly appears to have given in his evidence a substantial over-estimate of the time he had him in view, it was nevertheless neither a fleeting glimpse nor a sighting in difficult conditions. Their Lordships accordingly do not consider that the case falls into the category of those which require to be withdrawn on account of the inherent fragility of the identification, although, as they will discuss later, there were undeniable weaknesses and the need for careful direction about them still remained.
Some of the matters relied upon by Mr. Thornton as irregularities or weaknesses undermining the reliability of the identification give rise to a degree of concern and require to be taken into consideration. First, there were some matters in the evidence given by Bailey and by DS Ebanks which were not satisfactory. Bailey was permitted at several points in his evidence to point out the appellant in the dock as the man whom he identified as the gunman who shot him. It is well established that this would be a serious irregularity if it were the first identification: see, e.g. The State v Constance, Wilson and Lee (1999, unreported), where Sir Patrick Russell, giving the judgment of the Board, stated that it is only in the most exceptional circumstances that any form of dock identification is permissible: cf the discussion in the Scottish devolution appeal Holland v HM Advocate  UKPC D1, 2005 SLT 563. It may be borne in mind that this was far from being a first identification and it can fairly be said that the dock identification may have had little impact on the minds of the jury. It is, however, an undesirable practice in general and other means should be adopted of establishing that the defendant in the dock is the man who was arrested for the offence charged. On both these matters, when the evidence had been admitted, it was incumbent upon the judge to direct the jury to give it little or no weight.
DS Ebanks was also wrongly allowed to give evidence on a couple of matters. He should not have given his opinion on the need for an identification parade, and again the judge should either have prevented it or at least directed the jury that his opinion on the point was irrelevant and should be disregarded. More serious was his introduction of his obtaining the warrant in February 1999 for the appellant’s arrest and the reference to the information on which he acted. That was inadmissible hearsay and was capable of being highly prejudicial to the appellant. It is true that counsel then appearing for the appellant compounded the mischief by eliciting and underlining matters which should not have been mentioned in the first place, but if they had been properly kept out he might not have felt impelled to do so. It was made worse by the re-examination, in which Crown counsel was permitted to bring out even more prejudicial evidence, that Ebanks had sought a statement from the person from whom he had obtained the information, but that person was not willing to come forward. At the very least a strong and clear warning from the judge was in their Lordships’ view an essential corrective. They hope that courts will not permit similar evidence to be given in future cases.
The confrontation in the police station in the afternoon of 14 April 1999 was the subject of much of the argument before the Board. At one point counsel appeared to be at least adumbrating a conspiracy theory involving the invention by Bailey of the whole episode of seeing and recognising the gunman outside the bar earlier that afternoon. That theory was effectively discredited, however, by the adduction of the deposition of Detective Corporal Williams, one of the officers in the police car stopped by Bailey when he reported his sighting at the bar, which, although he had not given evidence at trial, their Lordships were prepared to receive for this purpose.
The Crown did not call any evidence to establish the reason why Bailey went to the police station in the afternoon of 14 April 1999, when he saw the appellant in the guard room. Confrontations between an identifying witness and a suspect are in general undesirable and should be avoided, lest they undermine the value of the identification evidence. The arresting officer would have been quite capable of establishing that the appellant was the person pointed out to him by Bailey near the Mango Tree Bar, so it was unnecessary to ask Bailey to come to the station to confirm that. It may have been done without sufficient thought on the part of the officers in the station, to allow him to confirm to them that he was the man who had shot him. Whether or not that was their motive, the confrontation was damaging to the quality of his identification. The damage is reduced by the fact that he had purported to identify the appellant only a couple of hours before, but the judge should have given the jury appropriate directions on the point. The occurrence of the confrontation and the lack of directions on it are factors to be borne in mind in considering the safety of the conviction.
No identification parade was held, the reason, as given by DS Ebanks, being that as Bailey had purported to identify the suspect in the street on the afternoon of 14 April 1999, there was little or no value in holding a parade. If one were held in these circumstances, the defence would criticise an identification made at it on the ground that the identity of the suspect seen recently would be imprinted on the mind of the identifier, who would not truly be identifying by recollection the person whom he saw at time when the crime was committed. There is substance in this view, which the judge adopted and retailed in fairly robust terms to the jury. Nevertheless, as Lord Bingham of Cornhill pointed out in R v Forbes  1 AC 473 at paragraph 27, the jury can and ordinarily should be told that
an identification parade enables a suspect to put the reliability of an eye-witness’s reliability to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair.
That observation was made in a case governed by Code D made under the Police and Criminal Evidence Act 1984 and there is no equivalent in Jamaica to that Code, but the principle contained in it may in appropriate cases give some guidance to Jamaican courts. Such a direction would have been preferable in the present case to the comment which the judge did make, but the harm done to the appellant’s case may not have been great, since it is difficult to suppose that Bailey would have failed to identify the appellant again if a parade had been held.
Their Lordships have recounted in this judgment a number of matters about the appellant’s trial which give rise to concern about the safety of the conviction, but they return to the central issue, the quality of Bailey’s identification of the appellant and the way in which he dealt with it in directing the jury. There was no other evidence inculpating the appellant, and a prosecution based solely on identification by a single witness requires particular care from the trial judge.
Bailey had a good opportunity to see the appellant at the time of the incident on 13 February 1999, even if that incident is unlikely to have lasted as long as Bailey’s time estimate. It was undoubtedly a stressful episode and Bailey was himself seriously wounded in the course of it and must have suffered considerable shock in consequence. When he identified the appellant on 14 April some two months had passed, in the course of which he had been in hospital for an emergency operation. The identification occurred at the place where the incident had occurred, and it could possibly have been claimed that this gave rise to an association of ideas. He had a reasonably close view of the appellant, though again his estimate of time appears excessive. He had given in his statement made on 18 February what appears to have been an accurate description of the appellant, so far as it went, but the only clothing which he recollected, despite staring at him, was his shirt. More surprising was his failure to mention the birthmark on the appellant’s face, which from the photograph (taken on the day of the appellant’s conviction) appears to have been fairly conspicuous and would have been visible at trial.
The prosecution case on identification had sufficient strength to be left to the jury, which may well have been entitled to accept it as sufficiently proved, despite its weaknesses. It was incumbent upon the judge, however, to give careful directions to the jury, setting out fully the strengths and weaknesses of the identification, linking the facts to the principles of law rather than merely rehearsing those principles. Their Lordships do not consider that the directions given by the judge were as clear or full as the case required.
When all these matters are taken together, their Lordships are compelled to conclude that the conviction cannot be regarded as safe and must be set aside. This makes it unnecessary for them to consider the question whether a possible verdict of manslaughter should have been left to the jury. The judge directed them that the alternative findings open to them were a verdict of murder or that the shooting was accidental, which was “no crime”. If the jury came to the conclusion, however, that the shooting was or may have been accidental and not deliberate, that might have grounded a conviction for manslaughter, on the basis that the victim’s death was the result of an unlawful and dangerous act. That question was not the subject of argument before the judge or the Court of Appeal and their Lordships will not express an opinion on it. They have no doubt that, if the Court of Appeal decides to order a new trial, it will be borne in mind by all concerned in any retrial.
Their Lordships will humbly advise Her Majesty that the appeal should be allowed, the conviction set aside and the matter remitted to the Court of Appeal for it to determine whether a new trial should be held.
R v Turnbull  QB 224
Watson v The Queen  UKPC 34;  1 AC 472
The State v Constance, Wilson and Lee (1999, unreported)
Holland v HM Advocate  UKPC D1, 2005 SLT 563
R v Forbes  1 AC 473
Police and Criminal Evidence Act 1984: Code D
Mr. Thornton QC for the appellant
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