R. v. DINH VAN DUONG and Another

Criminal Appeal No. 551 of 1995

Headnote

The importance of leaving to the jury a fair summary of identification evidence re-emphasised. No rules can be laid down but Turnbull directions must be impressed with the authority of the judge and must not be "blunted" or "watered down". R v Pattinson and Exley [1996] 1 CrAppR 51 and R v Fergus (1994) 98 CrAppR 313 considered.

IN THE COURT OF APPEAL

1995, No. 551
(Criminal)

-------------------------------------

----------------------

J U D G M E N T

----------------------

Mortimer, J.A. (giving the judgment of the Court) :

1. On 30 June 1995 after trial before Deputy Judge Daniel and a jury, the two applicants were convicted of attempted murder of TA Van Da on 21 July 1995. They were each sentenced to life imprisonment.

The facts

2. On 8 October 1994 the victim visited the Pillar Point Vietnamese Camp. He arrived after 7 p.m. and stayed only 15-20 minutes. When leaving, he was stopped by a man named Dung. On a pretence, Dung took him to the passage between Blocks 33 and 34. There, a murderous attack was carried out upon him by two men armed with knives and the man Dung. He sustained grievous injuries from which he was fortunate to recover.

3. At trial the victim gave evidence that he recognised the two assailants with knives as the two applicants. He knew the 1st applicant as "Ah Kwong" - in Vietnamese "Quang".

The evidence

4. The only link between the applicants and the offence was the victim's evidence of identification. He was not acquainted with them but he testified that he recognised each of them as persons whom he had previously seen in the camp.

5. This was not a typical "recognition" case where the witness recognised persons whom he knew well. Each counsel for the applicant rightly categorised the victim's evidence as previous "sightings".

6. His evidence as to the frequency with which he had seen the applicants on previous occasions was inconsistent. Also, his evidence on how well and for how long he was able to observe them during the attack and before he came unconscious was inconsistent.

The summing-up

7. When summing-up the identification evidence the Deputy Judge directed the jury on the special need for caution and reminded them of the danger inherent in identification evidence. Having referred to the "difficulties and dangers" of such evidence, he said at 5R to 6F:

"There is a need, members of the jury, for very special caution before you accept as accurate the identification of these defendants by Mr Ta. This is especially so when, as in the case before you, the Crown's case depends entirely on such evidence.

The reason for warning you to be very careful about identification evidence is because experience has shown in other cases that the chance of an eye-witness, no matter how honest and sensible he may be, the chance of his making a mistake in the identification of a person whom he has had a chance to observe for only a short time is quite considerable."

8. The judge gave Turnbull directions in general terms without specifying the particular weaknesses.

The applications

9. Counsel for the applicants rightly submit that the judge's direction on identification evidence must be considered in the round but they criticise two passages in particular. The first is at 6T to 7D:

"You should bear closely in mind these considerations when you are assessing the worth of the identification of the defendants by the witness. It was Ta's evidence that he knew both these defendants by sight and that the lighting was not completely dark. 'I could see clearly,' he said."

The second is at 7O to 8C:

"You will recall Mr Hemmings, in his address to you, demonstrating that even a period of fifteen seconds would be sufficient a time for a witness to see someone's face and remember it. That may be so, but would a victim of a frenzied attack by three men, using knives and inflicting these terrible injuries, be sufficiently composed to make a proper identification of his assailants in that time?

It is the Crown's case, though, that Ta knew both the 1st and the 2nd defendants by sight, and you will recall the evidence of the identification parade which was held, I think, on 9th November. On this parade both the defendants were picked out as the assailants."

10. The applicants' submissions can be summarised as follows:

(a) That in summing-up the judge did not point out the specific weaknesses of the identification evidence, but limited himself to generalities;

(b) That when a witness claims to recognise an accused, a specific warning on recognition evidence ought to have been given. None was given although such was particularly important in this case because the recognition evidence was based upon limited previous sightings;

(c) Finally, that the proper Turnbull warnings which were given were blunted in the two passages quoted above because:

(i) reference to the victim's statement that he "could see clearly" was inaccurate and misleading as a summary of his inconsistent evidence on this point; and

(ii) in the second passage, the judge wrongly left the jury with the impression that any difficulties inherent in the identification evidence and the witness' recognition of the applicants were resolved by the identification parades.

11. These were valid criticisms and Mr Bruce, for the Crown, with fairness and realism found the summing-up impossible to support in this respect.

12. Counsel for the applicants relied upon the passage in R v Turnbull [1977] 1 QB 224 at 228G:

"... 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."

which emphatically supports their contentions that the judge misled the jury on the specific weaknesses in the victim's evidence and failed to give a necessary warning on recognition.

13. On the question whether it is always necessary for a judge to remind the jury of specific weaknesses in the identification evidence reference was made to R v Pattinson and Exley [1996] 1 CrAppR 51 which cites and explains a passage in R v Fergus (1994) 98 CrAppR 313 at 321 where Steyn LJ said:

"It is not good enough for a trial judge simply to refer the jury to counsel's submissions about specific weaknesses in the identification. Under Turnbull, he must fairly and properly summarise for the jury such specific weaknesses as arguably are exposed by the evidence. The judge never came near to doing so."

This passage found in Pattinson at p. 56A.

Conclusion

14. As to the apparent principle expressed in the above citation from Fergus - there is nothing in that case which supersedes or qualifies the required Turnbull directions. Usually it is necessary for a judge to summarise both the weaknesses and the strengths of identification evidence but it is not necessary for a judge to do so in every case. This Court cannot and should not lay down rules for this. The summing-up must be tailored to the evidence in each case in order to achieve a fair summary. Having regard to the well-recognised dangers inherent in identification evidence, the Turnbull directions must be clearly impressed with the authority of the judge and must not be blunted or watered down by comment, or selectivity.

15. The judge's summary of the victim's evidence was selective and misleading, he failed to give any proper Turnbull direction on recognition and such direction as he gave was blunted. In these circumstances we were satisfied that the convictions are unsafe. We treated each application as the appeal. We allowed the appeals and set aside both the convictions and the sentences.

16. Having heard submissions from counsel, we ordered that the applicants should be retried on a new indictment.

Other points taken

17. Finally, in their notices of appeal the applicants criticise the judge's summing-up in other respects. Having regard to our findings above, it has not been necessary to either hear argument or make decisions upon those criticisms.