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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Langford & Anor v The State (Dominica) [2005] UKPC 20 (11 May 2005) URL: https://www.bailii.org/uk/cases/UKPC/2005/20.html Cite as: [2005] UKPC 20 |
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Langford & Anor v The State (Dominica) [2005] UKPC 20 (11 May 2005)
ADVANCE COPY
Privy Council Appeal No. 42 of 2004
(1) Leroy Langford and
(2) Mwanga Freeman Appellants
v.
The State Respondent
FROM
THE COURT OF APPEAL OF DOMINICA
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 11th May 2005
------------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
[Delivered by Lord Carswell]
------------------
• Alexander's ability to see the assailants with sufficient clarity to make a reliable recognition, given the state of the lighting, his distance for much of the time from the fracas and the possible obstruction of his view by the minibus;
• the fact that Ms Bridet did not recognise either Freeman or the victim Ossie Charles, both of whom she knew;
• the discrepancy concerning the route taken by the assailants to the scene of the incident;
• the discrepancies in the descriptions of the assailants' clothing;
• Alexander's estimate of time;
• his description of Langford running a knife over the back of the victim;
• his failure to name Freeman to Inspector Laudat;
• the uncertainty of motive for the appellants to attack the victim.
"I deal now with the subject of identification. It is very crucial to this case. Because this is a trial where the case against the two accused depends wholly on the correctness of one or more identifications of them which the defence allege to be mistaken. I must therefore warn you of the special need for caution before convicting the two accused or any of them in reliance on the evidence of identification. That is because it is possible for an honest witness to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses.
You must examine carefully the circumstances in which the identification by each witness, and in this case the sole Prosecution witness, Joseph Alexander was made. How long did he Alexander have the accused or the three persons he says he saw beating the deceased, how long did he have them under observation? At what distance? In what light? Did anything interfere with that observation? Had the witness ever seen the persons he observed before? If so, how often? If only occasionally, had he any special reason for remembering them? How long was it between the original observation and the identification to the police? Is there any marked difference between the description given by the witness to the police when he was first seen by Alexander and the appearance of the accused? Those are the circumstances and the questions you have to take into consideration in determining the correctness of the identification of the men by Joseph Alexander."
"And even if you conclude that the alibi was false, that does not of itself entitle you to convict the accused. The Prosecution must still make you sure of their guilt. An alibi is sometimes invented to bolster a genuine defence."
He concluded his discussion of the evidence by reminding the jury of the essence of the appellants' defence (page 89 of the record):
"Both accused are saying it is a case of mistaken identity: that the police and Prosecution are relying on one man, Joseph Alexander who is a very unreliable witness who made so many mistakes respecting the clothing they wore and the distances."
"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."
In relation to alibi evidence Lord Widgery said at page 230:
"Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was."
As the Board said in Mills and others v R (1995) 46 WIR 240, 246, the Turnbull principles do not impose a fixed formula for adoption in every case, and it will suffice if the judge's directions comply with the sense and spirit of the guidelines. The provision of a sufficient direction in cases which depend on identification evidence is nevertheless an essential principle and the Board has made it clear that it will scrutinise the summing-up in such cases and, if necessary, set aside verdicts if there has been a significant failure to apply the guidelines: see Bernard v R (1994) 45 WIR 296, 306, per Lord Lowry.
"We are concerned about the repeated failures of trial judges to instruct juries properly on the Turnbull principles when they deal with the issue of identification. Great care should be taken in identifying to the jury all the relevant criteria. Each factor or question should be separately identified and when a factor is identified all the evidence in relation thereto should be drawn to the jury's attention to enable them not only to understand the evidence properly but also to make a true and proper determination of the issues in question. This must be done before the trial judge goes on to deal with another factor. It is not sufficient merely to read to them the factors set out in Turnbull's case and at a later time to read to them the evidence of the witnesses. That is not a proper summing-up. The jury have heard all the evidence in the case when the witnesses testified. It will not assist them if the evidence is merely repeated to them. What they require from the judge in the final round is his assistance in identifying, applying and assessing the evidence in relation to each direction of law which the trial judge is required to give to them and also in relation to the issues that arise for their determination."
"And even if you conclude that the alibi was false, that does not of itself entitle you to convict the accused. The Prosecution must make you sure of their guilt. An alibi is sometimes invented to bolster a genuine defence."
That direction is serviceable so far as it goes, but it would have been more effective if it had expanded to some extent on the reasons which may underlie a false alibi, on the lines of the instruction given in R v Turnbull at page 230, quoted in paragraph 22 above.