R v Story

[2004] SASC 32

R v STORY
[2004] SASC 32

Court of Criminal Appeal:  Doyle CJ, Perry and Gray JJ

1. DOYLE CJ.            I would dismiss the appeal against conviction.

2. I agree with the reasons of Gray J.  However, on the issue of the adequacy of the Judge’s directions as to the identification evidence, I agree with the reasons of Perry J.

3. There is no doubt about the applicable principles.  They are stated by Perry J and by Gray J.  The issue in the present case is one of the application of those principles to the circumstances of the case.

4. The Judge’s direction to the jury about the general dangers associated with identification evidence of the kind in question in the present case was adequate.  I accept that the direction to the jury could have been more emphatic.  As well, it would have been preferable to tell the jury that honest and convincing witnesses have been mistaken when giving identification evidence, rather than to refer merely to the possibility of honest witnesses being mistaken.  Nevertheless, I consider this aspect of the directions to be adequate.

5. I also agree with Perry J that the Judge’s directions were adequate in relation to the matters that might affect the reliability of the identification evidence given by Ms Bottrall and Mr Worsley.  Once again, it would have been better if the Judge had dealt specifically with the particular matters that might affect the reliability of that evidence, rather than (as he did) refer somewhat generally to matters such as distance, lighting and so on.  It is preferable in such cases to remind the jury of the actual points to be made, relating quite specifically to the evidence.  I share the concern expressed by Perry J about the manner in which the Judge dealt with the possibility that the identification by Ms Bottrall and Mr Worsley of the appellant, shortly after the occurrence of the incident in question, was affected by the circumstance that the appellant was standing near a police officer and a security guard.  It would have been better if the Judge had given greater emphasis to this point, and had dealt with it in his own terms, rather than referring to the argument put by counsel for the appellant.  Nevertheless, like Perry J, having read the directions with care, I am satisfied in the end that they adequately brought home to the jury the danger of suggestibility.

6. It is for those reasons that I would dismiss the appeal.

7. PERRY J.               The circumstances giving rise to the offence upon which the appellant was convicted are set out in the reasons for judgment of Gray J.

8. I agree with Gray J that the grounds of appeal which challenge the trial judge’s ruling on the question of the admissibility of the evidence of identification, and the adequacy of the trial judge’s directions as to the nature of the appellant’s defence, the elements of the offence, the onus of proof and alternative verdicts, should be dismissed.

9. In my view, the only…