R v Terrell Neilly

Facts

The appellant (N) appealed against his conviction for armed robbery.

N was in possession of a gun and jewellery from the robbery when arrested. He was injured during the arrest and hospitalised and did not take part in an identification (ID) parade. He was charged with 10 counts of armed robbery, one count of possessing a firearm with intent and two counts of receiving stolen property. There were two co-defendants. The initial trial was aborted. At the retrial, N was identified in the dock by a witness (W) who had not attended any ID parade and had not identified anyone in the original trial. N's counsel had objected to the dock identification. The judge referred to the guidelines set out in R. v Turnbull (Raymond) [1977] Q.B. 224 and allowed the identification. The judge withdrew the receiving counts from the jury "for the sake of fairness and clarity and to avoid any confusion". The judge gave a standard Turnbull direction and specifically addressed W's evidence. She noted that W's ability to identify N at an ID parade had not been tested, but stated that the jury could convict on the basis of W's evidence if sure that it was correct.

N contended that the judge (1) had erred in allowing the dock identification; (2) should not have withdrawn the receiving counts from the jury; (3) had inadequately summed up the identification evidence.

Held

(1) When considering the admissibility and strength of identification evidence, it was often necessary to consider separately the circumstances in which the witness saw the accused and the circumstances in which he later identified him. The Court of Appeal addressed the former circumstances in Turnbull; the directions to be given to the jury included the duration and conditions of the witness's observation of the offender during or around the time of the offence, Turnbull considered. Issues regarding the quality of a witness's observation of an offender were relevant, and there was an additional need for caution in dock identification cases. The purpose of an ID parade was "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 safeguards by placing the suspect in a line made up of like-looking suspects", Myvett v Queen, The considered. The normal and proper practice should be to hold an ID parade and where a dock identification was admitted, the judge should warn the jury of the undesirability in principle and dangers of such an identification and give further directions, Holland v HM Advocate [2005] UKPC D 1, 2005 1 S.C. (P.C.) 3, Pop v Queen, The [2003] UKPC 40, (2003) 147 S.J.L.B. 692 and Pipersburgh v Queen, The [2008] UKPC 11 considered. The decision whether to admit such evidence was one for the trial judge, to be exercised in the light of all the relevant circumstances. Ultimately, the question was one of fairness, bearing in mind the judge's ability and duty to give appropriate directions. Where there had been no ID parade, whether there was any good reason for that was a material consideration. In the instant case, the judge had materially erred in considering that there was a good reason for not holding an ID parade and in not addressing the jury on the risks of mistaken dock identification. The dock identification should have been regarded as inadmissible (see paras 28-34 of judgment). (2) The offence of receiving was a true alternative to robbery. A person charged with robbery could not be convicted of receiving without a count alleging that offence being added to the indictment, as receiving was by definition otherwise than in the course of theft. It had been unwise of the judge to withdraw the receiving count. However, if the evidence of N's participation in the robbery had been sufficient for the jury to have convicted him of that offence, his conviction would not be unsafe by reason only of withdrawal of the receiving count. To find so would be tantamount to finding that the jury had not complied with its oath and was not sure that N was one of the robbers, and there was no justification for such a finding, R. v Foster (Mark) [2007] EWCA Crim 2869, [2008] 1 W.L.R. 1615 considered (paras 37-39). (3) The dangers of a dock identification, as referred to in Tido v Queen, The [2011] UKPC 16, [2012] 1 W.L.R. 115, had long been regarded as inherent. The judge's summing up was deficient in failing to warn the jury of those dangers, Tido considered (paras 35-36). (4) Apart from the dock identification, the evidence against N was as consistent with his having been a receiver, assuming dishonesty, as with his being a robber. It was impossible to conclude that, if there had been no dock identification or if the jury had been properly directed, N was bound to have been convicted. The conviction was therefore unsafe and would be quashed (paras 40-41).

Appeal allowed

Comment

A conviction for armed robbery was quashed as the judge had erred in finding that there was a good reason that an identification parade had not been held and in not addressing the jury on the risks of mistaken dock identification.

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