Court of Criminal Appeal quashes conviction for robbery due to inadequate jury warning on identification evidence.

[2004] IECCA 48

THE COURT OF CRIMINAL APPEAL

93/02

Hardiman J

Laffoy J.

Peart J.

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

KEITH O’DONOVAN

Applicant

JUDGMENT of the Court delivered the 10th day of December, 2004 by Hardiman J.

1. On the 13th December, 2001 an armed robbery took place at Farran Post Office, County Cork. Two armed robbers stole £8,000

from the son of the proprietor who was threatened with a firearm. They then made their escape in a stolen car. On the 13th May,

2002 the applicant was convicted of the offences involved and now brings his application for leave to appeal against his convictions

for:

(a) Robbery contrary to s.23 of the Larceny Act, 1916 as substituted by s.5 of the Criminal Law (Jurisdiction) Act 1976.

(b) The possession of an unauthorised firearm contrary to s.2 of the Firearms Act, 1925 as amended by s.15 of the

Firearms Act, 1964 and s.3 of the Firearms Act, 1972.

(c) Allowing himself to be carried in a vehicle without the consent of the owner or other lawful authority, contrary s.112

of the Road Traffic Act, 1961 as amended.

The evidence for all these charges is, however, virtually identical.

Grounds of appeal.

2. A number of grounds of appeal were urged in the three separate notices which were served on behalf of the applicant. The Court

is, however, satisfied that there is absolutely nothing in any of these grounds save that relating to identification. In some cases,

indeed, the ground adumbrated is unstatable: we do not understand, for example, how objection can be taken to the admissibility of

photographs of certain parts of the accused’s body which were taken with his consent. We do not see how case law and regulations

to do with the taking of photographs on a mandatory basis have any bearing on this issue.

3. We will therefore proceed directly to the identification ground. This ground is expressed as follows:

“The learned trial judge erred in law and in fact in failing adequately to warn the jury on the dangers of visual

identification evidence. On the contrary the learned trial judge interfered with the role of the jury in disclosing his own

view of the central issue of fact.”

Importance of identification.

4. There is no doubt that identification was central to the prosecution’s case. The Director’s case was that some short time after the

robbery – there was a dispute about precisely how long after the crime it was – the applicant and another man were identified by two

gardaí at a point about 4 ½ miles from the Post Office at Farran. They were allegedly identified across some fields which formed a

valley, when they themselves were over 300 meters (328.1 yards) away from the identifiers. The guards were equipped with a pair of

binoculars between them and the identification was made with the aid of the binoculars. This was done at or shortly after 9.30am on

the morning of the 13th December, 2001 which on the evidence of the gardaí was “a fairly miserable, wet, drizzly day.”

5. In the course of his charge to the jury, the learned trial judge said:

“Identification is a very important aspect of the case, because as Mr. Edwards said, and I think Mr. Creed agrees with

him, it is really the identification by the two guards, Detective Garda Cahill and Detective Garda Nagle of the accused as

they saw the two men, first of all from over the gap and secondly across the valley, if you like, through the binoculars

and then when they saw them beside the river when they came back with the car, which I will come back to later again.”

6. In argument on the appeal, Mr. Edwards S.C. for the Director very fairly agreed that his case could not be made out without the

identification evidence.

The charge and identification.

7. Just after the passage from the charge quoted above the learned trial judge said:

“But I just want to give you a warning ladies and gentlemen. The Court of Criminal Appeal in a case entitled The People

(AG) v. Casey which was in 1963 Irish Reports, required that there be a mandatory warning of juries in cases where the

prosecution is relying substantially or wholly on the visual identification of the accused as the person who perpetrated the

crime and this is what the Court of Criminal Appeal said in 1963…”.

8. The learned trial judge then read the jury an extract from the very well known judgment of Kingsmill Moore J. To avoid burdening

this judgment with so well known a passage, we will simply record that the passage read to the jury begins with the words “We are of

opinion that juries as a whole”, which occurs just below the middle of page 39 of the report and he continued to the end of that

paragraph, eleven lines down on page 40.

9. The learned trial judge then added the following observations of his own:

“So you have heard the evidence of the two guards who – I am now interfering, perhaps – are trained observers. One of

them had a pair of very strong binoculars, and you will have the binoculars when you go to your room, and he says that

he positively identified him, so you have got to be very careful about this. If you are satisfied beyond reasonable doubt

you are entitled to act.”

The word rendered as “interfering” may, it occurs to us, have been “inferring”.

10. This treatment of the topic of identification is criticised on a number of grounds. They boil down to two separate and distinct

criticisms. Firstly, it is said, the Casey charge is simply read to the jury as a “stereotyped formula” without further explanation and

without reference, in the section of the charge dealing with identification, to the factual circumstances of this case which had a

bearing on the topic. Secondly and separately it is contended that the effect of the paragraphs cited above which was the part of

the learned trial judge’s charge immediately after the citation from Casey, was to take from or even belittle the Casey warning or to

suggest that it did not apply, or applied with less force, to identification by guards. Furthermore, says the applicant, there was no

evidence whatever that the guards are “trained observers” and this reference is calculated to mitigate the effect of the Casey

warning. It is particularly notable, on the applicant’s case, that the warning was diluted in this way, and that an irrelevant reference

to gardaí as observers, without any basis in evidence, was made in the context that there was a total failure to mention in the same

passage the factors tending to make identification difficult in the circumstance of this case.

The Director’s answers.

11. The Director says, firstly, that the Casey warning was given in the form of the citation from the case itself. Secondly, he says

that it was a recognition case, not an identification by strangers. He said that references to the day being misty and to distances

between the relevant locations do occur in the charge, though not in the part of it relating to identification. He relied on the fact that

no requisition about identification was made at the end of the learned trial judge’s charge. Asked whether the charge was one of

borderline adequacy, counsel delphically replied “Yes and no”. We take this to be a submission that although the charge might have

been improved on, all necessary elements of a proper charge were present at some point in it.

Decision.

12. There has been no doubt, at least since the decision of this Court in DPP v. Stafford [1983] IR 165 that the necessity to give the

Casey warning applies to a case, like this, where the evidence is of recognition rather than identification by a stranger, and is the

evidence of gardaí.

13. In fact, it was clear that this was always so from the text of Casey itself. In the paragraph after that quoted in the judgment

Kingsmill Moore J. continued:

“This direction is not meant to be a stereotype formula. It may be too condensed to be fully appreciated by a jury

without some further explanation and the facts of an individual case may require it to be couched in stronger or more

ample terms, as when the witness or witnesses had no previous acquaintance with the appearance of the accused”.

14. The reference in the last, partially quoted, sentence makes it clear that the warning applies whether or not the witness was

previously acquainted with the accused but may apply all the more strongly if he was not so acquainted.

15. The English case of R v. Turnbull [1977] QB 224 was cited with approval by this Court in Stafford. In particular the following

passage from the judgment of Widgery C.J. was approved:

“Recognition may be more reliable than identification of a stranger; but even when the witness’s purporting to recognise

someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are

sometimes made.”

16. Turnbull is also an authority for the propositions that the learned trial judge should:

(a) instruct the jury as to why it is necessary to be cautious with such evidence,

(b) point out that very often an identification witness, even when mistaken, can be honest and very convincing,

(c) direct the jury to examine closely the circumstances of the identification e.g. the distance of the observer from the

criminal, the light, the date and time of observation and whether the witness had seen the accused before and that he

should

(d) Remind the jury of any weaknesses in identification.

17. This, indeed, traverses very much the same ground as the Supreme Court had covered in Casey:

“Their attention should be called in general terms to the fact that in a number of instances such identification has proved

erroneous, to the possibilities of mistake in the case before them, and to the necessity of caution.”

18. It does not appear to us that this duty can be discharged wholly by reading out a passage from Casey. There must, for example,

be some reference “to the possibilities of mistake in the case before them” and we do not see this here. References to the weather

and the distance are present in the charge but at a point remote from the Section dealing with identification. They are not connected

to identification.

19. In the DPP v. O’Reilly [1990] 2 IR 415, the Supreme Court said that the warning should not be given in a stereotypical manner, but

applied to the facts of the particular case.

20. Turning to the reference to the gardaí being “trained observers” a number of points arise. Firstly, it was a statement made wholly

without any evidential foundation. Its meaning can only be that an identification by gardaí is better and more reliable than an

identification by a person who is not “trained observer”. If this is to be contended for, it must be supported by evidence. We are

unaware of any evidence to this effect, or indeed of any attempt in any case, ever, to establish in evidence that an identification by

a policeman, or two policemen, is more reliable than an identification by other persons.

21. The learned trial judge, as he himself may have said, was indeed “interfering” or “inferring” in making this statement in the

absence of any evidential foundation being been laid for it. The jury could only have concluded that this was his view, and may have

considered that his view was based on experience of other cases, or on some body of knowledge of which they, the jury, were

unaware.

22. In summary, the following can be said about the treatment of identification in the charge.

(a) It consists wholly of a quotation from Casey. This was, we fear, delivered as a “stereotyped formula”.

(b) It was not at all related, as it should have been, to the facts of the particular case and in particular to the conditions

of season, weather, and distance, which plainly made the circumstances for identification less than ideal, to say the

least.

(c) It was followed by a statement from the learned trial judge whose effect can only have been to lessen the

significance of the warning on the basis that the identifying witnesses were gardaí and “trained observers”. There is

simply no evidence of this, or of the still more important proposition, necessary if the remark is to have meaning, that the

training (if any) in observation had by members of the Garda Síochána actually makes them reliable identification

witnesses.

23. We have given serious consideration to the fact that, although the charge appears defective for the reasons set out above, it

was not the subject of requisition on any of these grounds, or anything like them, by the experienced counsel conducting the

defence. This is a matter of great significance, for the reasons often set out by this Court. We have nevertheless concluded that,

since identification is so important and so common a feature of criminal trials, and the scope for erroneous identifications is well

established, we ought not to apply s.3(1)(a) of the Criminal Procedure Act, 1993 and decline to quash the conviction, although

satisfied that the point might be resolved in favour of the applicant. We could not be sure that no miscarriage occurred, especially in

view of the suggestion, without evidential support, that an identification by Gardaí may be less prone to error and require less care,

than an identification by a civilian.

24. We will therefore treat the hearing of the application for leave to appeal as the hearing of the appeal, allow the appeal, quash the

conviction, and order a retrial.