R v Bell
[2000] QCA 442
•27 October 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Bell [2000] QCA 442 PARTIES: R
v
BELL, Corey George
(appellant)FILE NO/S: CA No 155 of 2000
DC No 3656 of 1999DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 27 October 2000 DELIVERED AT: Brisbane HEARING DATE: 14 September 2000 JUDGES: Pincus and Thomas JJA, Jones J
Joint reasons for judgment of Thomas JA and Jones J; separate reasons of Pincus JA dissentingORDER: Appeal against conviction dismissed CATCHWORDS: CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – IDENTIFICATION EVIDENCE - DIRECTION TO JURY – ADEQUACY OF WARNING - adequacy of identification evidence generally - colour of accused’s eyes – use of photoboards - whether police procedure irregular
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS - improper remarks by crown prosecutor - accused’s right to silence – whether accused deprived of fair trial
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – POWER TO DISMISS WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – GENERAL PRINCIPLES – application of proviso in s 668E of the Criminal Code
Criminal Code (Qld), s 668E
Police Responsibilities Code (Qld), s 89(3)Alexander v R (1981) 145 CLR 395, considered
Burdett (1820) 4 B & Ald 95; 106 ER 873, considered
Gipp v R (1998) 194 CLR 106, referred to
Jones v R (1997) 191 CLR 439, referred to
M v R (1994) 188 CLR 487, applied
Petty v R (1991) 173 CLR 95, considered
RPS v R [2000] HCA 3; (2000) 74 ALJR 449, referred to
Weissensteiner v R (1993) 178 CLR 217, consideredCOUNSEL: P A Leask for the appellant
W A Clark for the respondentSOLICITORS: Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
PINCUS JA: I have had the advantage of reading the joint reasons of Thomas JA and Jones J. I am in agreement with those reasons up to and including para [30]. As to the discussion of the prosecutor's address, I will give my own reasons, as I would allow the appeal.
The prosecutor said he thought he told the jury, in the course of his address:
"Well, there's no evidence on his side to say it wasn't him. No evidence of any alibi to say, 'Oh, I was watching TV at the time with someone or he was in another city' or something of that nature. There's no evidence at all so it's her evidence and her evidence alone, and why would you doubt it?"
Mr Leask, in his thorough argument on behalf of the appellant, contended that the prosecutor's remarks "were such a serious breach of proper procedure that the error deprived the appellant of a fair chance of acquittal". The first question is whether the prosecutor's remarks were or were not properly made. Their vice, if they have one, is that the implication was that because no alibi evidence was called there was no reason to doubt the identification evidence given by the complainant.
In Weissensteiner (1993) 178 CLR 217, remarks were made which would perhaps tend to justify what the prosecutor said; they are to be found in the judgment of Mason CJ and Deane and Dawson JJ at pp 224-229 and at pp 233-236 of the judgment of Brennan and Toohey JJ. I quote, by way of illustration, from the last page cited:
"... in Queensland ... a judge may tell the jury that where the facts which they find to be proved by the evidence can support an inference that the accused committed the offence charged and where it is reasonable that, if the truth were consistent with innocence, a denial, explanation or answer would be forthcoming, the jury may take the accused's failure to give evidence into account in determining whether the inference should be drawn."
The respondent's difficulty is enhanced by the fact that the High Court has revisited the topic, in RPS [2000] HCA 3; 74 ALJR 449. In the principal judgment the trial judge's directions about the accused's failure to give evidence were discussed from two points of view: the directions were held to be in contravention of the provisions of s 20(2) of the Evidence Act 1995 (NSW) and contrary to "fundamental features" of a criminal trial. The first point is not relevant here, but the second certainly is.
In the principal judgment (emphasis, in each instance, added) it is held that:
1. The principle of Burdett [1820] 4 B & Ald 95 at 161-162, 106 ER 873 at 898:
"... relates to the drawing of inferences or conclusions from other facts. It is not a mode of reasoning that is concerned, for example, with whether the direct evidence of an eyewitness should be accepted". (para [23])More simply, Burdett refers to "those inferences that would usually be drawn from proved facts ...". (para [24])
2. "... it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks". (para [27])
3. "... where the prosecution leads direct evidence of the accused's guilt ... it is ... not right to say that it would be reasonable to expect the accused to give evidence denying or contradicting that direct evidence". (para [34])
Here the prosecution case depended on the complainant's identification of the appellant as the person who attacked her; if that were doubted by the jury, they had to acquit. The case was one in which the question was whether "the direct evidence of an eyewitness should be accepted", not one of inference from proven facts, and RPS implies that the mode of reasoning in Burdett should therefore not have been used.
RPS deals with a summing-up, not a prosecutor's address. Here, the judge was not asked to and did not give a direction about the point made by the prosecutor. The defence counsel said to his Honour:
"I don't specifically ask for a redirection because it would be drawing attention to what was said and your Honour's summing-up has past (sic) that and they may well forget what was said, but I think I should raise that and put on the record at this point."
The judge had previously told the jury, towards the beginning of his summing-up, that the appellant had not given evidence and:
"You must not draw any inference adverse to him for not giving evidence. It means this and nothing else, that the evidence comes before you uncontradicted by any sworn evidence from him. He called a witness, that was Miss Williams, but at no stage does the defence undertake to prove his innocence."
I can understand the view, apparently taken by counsel, that for the judge to re‑agitate, in whatever fashion, the point raised by the prosecutor could damage the prospects of acquittal. The general direction the judge gave about the effect of the accused's not having given evidence would no doubt have helped, but I have been unable to be convinced that it would utterly have eradicated from the jury's minds the thought: "The accused has called no alibi evidence, so there is no good reason to reject the identification evidence called by the Crown".
Not without regret, I have come to the conclusion that the jury might well have been influenced, by what the prosecutor said, to take the line he suggested. The appeal should be allowed, in my respectful opinion, and a new trial ordered.
THOMAS JA and JONES J: On 16 June 2000 the appellant was convicted in the District Court at Brisbane of three offences namely, robbery with personal violence, doing grievous bodily harm and unlawful use of a motor vehicle.
He appeals against each of these convictions on three grounds –
1.that the learned trial judge ought to have excluded identification evidence by the complainant Mrs Kirby;
2.that the verdicts are unsafe and unsatisfactory;
3.that a miscarriage of justice has resulted from comments during the prosecutor's address as to the accused's failure to adduce evidence to show that he was not at the crime scene, which comment undermined the judge's direction as to the accused's right to remain silent.
Grounds 1 and 2 depend on the reliability of the evidence of Mrs Kirby (the complainant) who identified the appellant as her attacker. Ground 2 is also to be considered in the light of the effect on the jury of the prosecutor's remarks.
Identification
The evidence as to identification is in relatively short compass. At approximately 2.45 pm on Thursday, 11 May 1999 the complainant went to a small shopping complex at the corner of Samford Road and Wardell Street, Enoggera. She was carrying a brown leather handbag by means of a shoulder strap resting across her right shoulder. She was about to enter the newsagency at the shopping complex when two youths were emerging from the same shop. She took particular notice of one of them. When they were no more than three steps apart she heard him speaking words to the effect that he "needed a couple of bucks more". She described him as having "slim build, dark hair, dark eyes, olivey complexion". She also observed that he wore a shirt with short sleeves, collar, "those wide baseball stripes", and buttons down the front. She said that her eyes and those of the appellant met while he was talking to his companion.
The youths passed her – one to her left and the other to her right. The youth she had earlier observed passed her on her right. This youth grabbed the strap of her handbag and pulled it causing the complainant to fall backwards onto the bitumen near to parked cars. The assailant pulled on the strap causing the complainant, who had fallen on top of the bag and was still holding onto it, to be dragged along the ground. She was, by this time, close to the exhaust pipe of a car which had its motor running. The assailant, using "very strong" force, managed to overcome the complainant's hold on the bag.
The complainant gave evidence that whilst struggling to retain possession of the bag she again saw the appellant's face, although this time it was only a "quick glimpse". He was the same person she had originally observed.
She said that after the fall things got “a bit fuzzy” by which she meant "everything happened so quickly".
The complainant suffered a painful injury to her arm and was taken from the scene to hospital where she was admitted for a period of four days. She was spoken to briefly by Senior Constable Heery soon after the incident and then again on 16 May when he showed her five photoboards, each containing 12 photos of the faces of young men. None of them contained the appellant and she rejected all 60 photographs. Two days later a different police officer visited the complainant’s house with another photoboard from which the complainant did make an identification of the person she claimed snatched her handbag. That identification process was recorded by audio tape, but that tape was later lost. However, the police officer, Constable Martin, gave evidence of the circumstances of the identification in the following terms:-
“I have shown it to her, she has looked, I have seen her look at the photoboard, and she has indicated to me by pointing and stating – she pointed to number 3 and I said, “can you state the number?”. She said, “It is number 3.” I said, “What is familiar about him?” or, “What is it about number 3?” and she said that, “His skin colourings, his tonings and his eyes.”, she said, “I’ll never forget those eyes. That’s the person that took my bag.” Or, “That robbed me.”, something along that.” [1]
[1]Record 55/17-27.
There was no suggestion of hesitation or uncertainty in her identification. Indeed when the learned trial judge clarified a point in cross-examination about the possibility of her being mistaken, she stated that she was very confident that the photo depicted the person she saw. Nothing emerged in the evidence, either in examination or cross-examination of either the complainant or Constable Martin to raise any suspicion of unfair leading on Constable Martin's part or of any unfairness in the manner in which the identification was conducted. The evidence of both women was consistent.
The complainant had given a formal statement to police officers on 27 May 1999 in which she recorded a description of the assailant as having “short dark hair and brown eyes.” Curiously, there was a conflict in the evidence as to the actual colour of the appellant's eyes. In cross-examination the complainant had said that she particularly remembered her assailant's "dark brown eyes". The relevant photograph shows dark eyes which (in our view) would reliably be described as brown or black. The investigating police officer (Senior Constable Hutton) who had some dealings with the appellant described his eyes as brown. During the trial a screen was placed in a position to avoid the complainant and the appellant being able to see each other, but the appellant was of course visible to the judge and jury. The appellant did not give evidence, but called a witness, Ms Jessie Williams who had known the appellant about five years ago at a college, and who had last seen him (before seeing him coming into court) about four years ago. She stated that in her opinion the colour of his eyes was green, and in cross-examination, "dark green". The learned trial judge summed up on this question as follows:
"She gave evidence of his eyes. She said they were eyes she would never forget. Well, there's some dispute about the eyes and, as I have said, you're entitled to look at his eyes. Somebody on a police report once described them as green and the girl Williams describes them as green. The colour is a matter of opinion, isn't it? And they have been described by a police officer as brown and – there's absolutely no doubt about it, that so far as Mrs Kirby was concerned, the eyes that she saw were brown. So if she's wrong on that, of course, that's the end of the identification. You must acquit."
On this particular issue the jury obviously enjoyed a direct and considerable advantage. In the end all that can be said is that there was a conflict of evidence on the point, and the jury, with the advantage just mentioned, regarded the complainant's description as acceptable.
The complainant in cross-examination estimated the assailant's height as 5 feet 8 inches. The appellant's height was subsequently admitted to be 165 centimetres (5 feet 5 inches) "without shoes".
The complainant's handbag was later found in an abandoned Ford Telstar which was described by its owner as being "a metallic light brown type colour".[2] The complainant described the vehicle as a Ford, metallic green in colour. In her evidence she said she “didn’t take a great deal of notice and could not really tell the colour, but she thought it was a Ford”. The vehicle which had been more closely observed by Mr Burgoyne, the proprietor of the chemist shop adjacent to the newsagency, and he thought the vehicle was a Mazda 626, metallic green in colour.[3] According to the evidence a Mazda 626 is identical in shape to the Ford Telstar, so the only discrepancy in the vehicle description relates to its colour. The vehicle is described by its owner Mrs Gemmell as being “a metallic light brown type colour”. The jury, of course, had photographs of this vehicle before them. The only relevance of evidence about the vehicle is to gauge the complainant’s reliability as an observer. In this context she was correct in her description of the make of the vehicle. Her description of the colour in the environment in which she saw it was consistent with that of another person who had occasion to observe the vehicle closely in the same circumstances. It was submitted that the complainant showed a degree of unreliability by inaccurately describing the colour and make of the vehicle which sped away, but in context this is not a persuasive submission.
[2]Record 63/18.
[3]Record 67/30.
The only evidence which links the appellant to the offences is the complainant's identification. The defence challenges the reliability of her identification by reference to –
1.the fact that the identification was by means of photographs;
2.that the identification was not carried out in accordance with standard police procedures;
3.there was a failure to conduct an identification parade; and
4.the complainant’s identification was unreliable because of the circumstances in which she made the identification which included the facts that the assailant was a stranger to her, she was the victim of a sudden attack and she misdescribed the assailant’s eye colour.
Against this, the prosecution points to the facts that complainant’s description of the assailant was given soon after the event, that the photo identification occurred within six days of it and the jury had the opportunity to assess the complainant’s reliability as a witness having before it both the photographs and the presence of the accused.
The acceptance by the jury of the complainant’s identification must be seen in the context of a very complete warning given by the learned trial judge in the course of his summing up as to which there is no complaint on this appeal.
Use of photographs and the procedures
Counsel on behalf of the appellant has made reference to judicial expressions of preference for identification parades over identification by photographs. He referred particularly to Alexander v The Queen.[4] Two of the bases for this preference are that an identification parade is not only more reliable, but it is necessarily held in the presence of the accused (per Gibbs CJ at 400) and that the photos might suggest that, the police having in their possession the photographs, the accused has a criminal record.
[4](1981) 145 CLR 395.
As to the first of these concerns in this case there was no suggestion that an identification parade was sought or agreed to or could have been undertaken. These issues were simply not canvassed in the evidence before the jury nor in the appellant’s submissions made at the close of the Crown case although complaint was made about the configuration of the photoboard and the difference in the background of the appellant’s photograph. We do not think that any legitimate complaint can be made about selection, positioning or overall composition of the photoboard on which the appellant's photograph was placed.
It was submitted for the appellant that it was made "pretty clear" that the photograph of the appellant must have come from police custody and that this would have prejudiced the jury against the appellant. It was submitted that the appellant should have been invited to permit a photograph to be taken of him in order to avoid the inference being drawn that the photograph came from the custody of the police. The evidence was in our view neutral on the origin of the various photographs. It is to be noted in any event that in a case like the present where the appellant was not a particular suspect, it would be very difficult for the police to show a complainant a wide range of possibilities, as would commonly be necessary when there is no real lead or particular suspect. There was cross-examination by defence of Senior Constable Heery (who prepared the initial five photoboards) to the effect that the photograph of a possible suspect named Michael Josey had appeared on two of the photoboards. That cross-examination revealed that there had been four particular persons, Josey, Clayton, McGrath and Evans about whom he was concerned. The constable explained that he knew Michael Josey and his brother David unlawfully used vehicles in the company of McGrath. He explained that Michael Josey's double appearance in the photoboards was probably an error and that the second one should have been of David Josey. In re-examination the constable stated that no suspect had initially come to mind, and "that is why I made the five in the hope that it may kick something off for us". In the end the submission comes down to an objection that the jury might think that the appellant was as associate of those persons. As to this there is evidence that the Josey boys were associates of McGrath, but no suggestion whatever that the appellant was an associate of any of them. The suggestion on behalf of the appellant that that passage in re-examination of Senior Constable Heery might indicate to the jury that the accused had a criminal record cannot be seriously entertained in the circumstances of this case. So far as the other submission is concerned, namely that the jury might assume that the appellant's photograph came from police custody, the evidence on that question was confined to that of Constable Martin who said "I compiled a photoboard". The evidence was in our view appropriately neutral.
The variations in the size of the photograph and its background were not such as to give the photograph of the appellant more prominence than others.
It was argued also that the police officers’ failure to comply with the Police Responsibilities Code with respect to the production of the recording of the identification process was also a factor which ought to have lead to the exclusion of this evidence. Section 89(3) of the Police Responsibilities Code provides:-
"(3)Also, if reasonably practicable, the way a witness identifies a person during an identification procedure must be electronically recorded.”
A similar policy is expressed in the Operational Procedures Manual in s 2.11.6.
In this case the procedure was followed in the sense that the complainant’s identification was the subject of an audio recording. The tape of that recording was however lost and details of the efforts to find the tape were given by Constable Martin. It was never challenged that proper procedures were not followed. The only consequence of the lost tape is that the jury had before them only Constable Martin’s recollection of how the identification was made and the complainant’s evidence that she was “very confident” of her identification. The failure to produce the audio tape of the identification process, whilst regrettable, does not weigh heavily in the present case where nothing emerged in the respective evidence of the complainant and Constable Martin to raise any suggestion of improper procedure. There was virtually no challenge to either witness about these circumstances of the identification.
The Prosecutor’s comment
At the end of the second day of the trial the learned trial judge adjourned without having completed his summing up. Before resuming the following morning the appellant’s counsel complained about a remark made by the prosecutor during his address. That address was not recorded but the prosecutor provided his recollection of the remark in the following terms:
PROSECUTOR: I do recall it. It was in the context of when I was talking to the jury, “Well, there’s no evidence on his side to say it wasn’t him. No evidence of any alibi to say, ‘Oh, I was watching TV at the time with someone or he was in another city’ or something of that nature. There’s no evidence at all so it’s her evidence and her evidence alone, and why would you doubt it.”. I think it was in that context that I made the remark. I didn’t use any notes for it unfortunately. It was just sort of off-the-cuff so I don’t know exactly what I said.[5]
[5]Record 106/1-10.
That recollection was accepted as accurate by the defence counsel at trial who was not counsel on the appeal. Defence counsel expressly indicated he did not seek any redirection. Whether this was a tactical decision to avoid highlighting the point or simply an indication of low impact on the jury is not possible to gauge. In the event, his Honour made no further comment to the jury on this point. Criticism is now made of his Honour’s failure to correct the alleged mischief that arose from the remark, particularly having regard to the prosecutor’s use of the word “alibi”.
The prosecutor's comments are couched in negative terms. There could be no objection to the final sentence "There's no evidence at all so it's her evidence and her evidence alone, and why would you doubt it?" The potential harm is in the preceding words which, while literally correct, may carry an implication that the appellant should have called evidence "to say it wasn't him" or of an alibi. In our view the comments could be regarded as carrying such an implication and that the prosecutor went further than he should in the circumstances of the case. The error had of course already been corrected by the learned trial judge who had given to the jury a direction on the accused's right to silence in appropriate terms as follows:
“Members of the jury, the onus of proof lies upon the Crown. The Crown has brought these charges and it is for the Crown to prove them. The accused called a witness in this trial. He did not give evidence himself. You must not draw any inference adverse to him for not giving evidence. It means this and nothing else, that the evidence comes before you uncontradicted by any sworn evidence from him. He called a witness, that was Miss Williams, but at no stage does the defence undertake to prove his innocence. It remains at all times for the Crown to prove that he is guilty.” [6]
[6]Record 84/48-85/5.
It is well recognised that neither counsel nor trial judge should make comments which suggest there is any obligation on an accused person to give evidence. In Petty v The Queen[7] the judgment of the majority contains the following passage (at 99):
“In a criminal trial, it should not be suggested, either by evidence led by the Crown or by questions asked or comments made by the trial Judge or the Crown Prosecutor, that an accused’s exercise of the right of silence may provide a basis for inferring a consciousness of guilt.”
[7](1991) 173 CLR 95.
The permissible limits when making reference to the accused’s right to silence have been discussed in a number of decisions. See particularly RPS v The Queen[8] and Weissensteiner v The Queen.[9] In the latter case, from the joint judgment of Gaudron and McHugh JJ, the following appears (at 245):
“In the context of the right to silence, it is important to bear in mind that it is the failure to provide an “explanation or answer... as might be expected if the truth were consistent with innocence” which is of evidentiary significance and not the failure to give evidence as such. In many cases, an explanation can be offered without the giving of evidence: it may, for example, be advanced when a person concerned is first confronted with the facts or it may be advanced in the course of the trial without evidence from the accused.
...
Accordingly, directions should be given in terms of the unexplained facts, rather than in terms of the failure to give evidence or to meet the prosecution case generally or the failure to answer questions from the investigating police.”
[8](2000) 74 ALJR 449.
[9](1993) 178 CLR 217.
The question of the effect of the above remarks in the prosecutor’s address, which was then followed by his Honour’s direction referred to above, falls to be determined as part of the overall consideration of the evidence, the conduct of the case and question whether the conviction is unsafe and unsatisfactory.
Approach of the appellate court
Section 668E of The Criminal Code provides:
"668E (1) The court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(1A) However, the court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”
The test to be applied for determining whether a verdict is unsafe or unsatisfactory is that expressed in M v The Queen[10], re-affirmed in Jones v The Queen[11] and further discussed in Gipp v The Queen[12].
[10](1994) 181 CLR 487, 493.
[11](1997) 191 CLR 439, 450-452.
[12](1998) 194 CLR 106, 123, 169.
The test, authoritatively determined in these cases, requires the court to ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.[13] As was further explained by the majority in M v The Queen, “if the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is significant possibility that an innocent person has been convicted, then a court is bound to set aside the verdict based upon the evidence”.[14]
[13]M v The Queen (supra) at p 493 per Mason CJ, Deane, Dawson and Toohey JJ.
[14]Ibid at p 494.
In summary, the verdicts in this case depended on the jury being satisfied beyond reasonable doubt of the evidence of the complainant Mrs Kirby. The discrepancies and inadequacies of her identification evidence to which the appellant draws attention are in three broad areas –
1.the brief time she had to observe the assailant who was a stranger to her;
2.the fact that she described the assailant’s eyes as dark brown when they were dark green; and
3.that the inherent dangers of identification by photoboard were present in this case rendering that evidence, though admissible, unreliable.
Conclusions
Although some criticisms are open, the identification evidence in our view can properly be regarded as reasonably reliable, and as reasonably capable of sustaining the conviction. The following factors support this view. It was a daylight identification. The opportunity for observation of the person concerned though not lengthy was by no means fleeting. There was an unhurried look at the face of the offender, with a meeting of the eyes, and after the violence there was a further brief confirmatory look. The period between the observation and the making of the identification was, in the context of cases involving issues of this kind, quite short, namely six days after the offence. Her description of the offender, although not extensive, was reasonably consistent with that of the appellant. The alleged error in relation to colour of the eyes is not a matter that can properly carry weight upon this appeal as it would seem to have been plainly resolved against the opinion of the appellant's witness by the jury after proper adversion to that point. The complainant's rejection of five separate photoboards before making her final identification tends to suggest that there was no hysteria or preconception in what she did. The criticisms of the photoboards and the procedures relating thereto are, for reasons mentioned above, not persuasive in undermining the identification. A reading of the complainant's evidence including cross-examination suggests her to have been a fair witness. The conduct of the trial by the learned trial judge was impeccable, and no criticism is made of the summing-up which included adequate judicial warnings in relation to identification.
In short, leaving aside the question of possible effect of the over-reaching statement made by the learned Crown prosecutor, we do not think that there is any reason to regard the identification evidence as unsatisfactory or the verdict as in any way unreasonable or unsafe and unsatisfactory. Neither do we think that the adding of this circumstance to the scales serves to tip the balance in favour of concluding that any error occurred of a kind that could have deprived the appellant of a fair chance of acquittal. The comment of the prosecutor was followed by proper judicial directions on the right to silence, and the comment cannot seriously be thought to have in the end impacted upon the jury's task of considering whether the Crown case established beyond reasonable doubt the guilt of the appellant. If contrary to the above view the Crown Prosecutor's conduct, or the judge's failure to give still further directions despite the absence of any request to that effect were regarded as constituting an error, this is a case in which it would be appropriate to apply the proviso.
We would dismiss the appeal.
0
5
1