Rankins v The State of Western Australia
[2007] WASCA 51
•8 MARCH 2007
RANKINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 51 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:39/2006 | 22 FEBRUARY 2007 | |
| Coram: | WHEELER JA BUSS JA MILLER AJA | 7/03/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed Convictions quashed | ||
| B | |||
| PDF Version |
| Parties: | DENNIS LLOYD RANKINS THE STATE OF WESTERN AUSTRALIA YOANTIS MANUAL COUNCILLOR |
Catchwords: | Criminal law Evidence Identification Similarities to offender No positive identification No other evidence identifying appellants Whether convictions a substantial miscarriage of justice |
Legislation: | Nil |
Case References: | Domican v The Queen (1992) 173 CLR 555 Pitkin v The Queen (1995) 130 ALR 35 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RANKINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 51 CORAM : WHEELER JA
- BUSS JA
MILLER AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
File No : INS 214 of 2004
Catchwords:
Criminal law - Evidence - Identification - Similarities to offender - No positive identification - No other evidence identifying appellants - Whether convictions a substantial miscarriage of justice
Legislation:
Nil
Result:
Appeals allowed
Convictions quashed
Category: B
Representation:
CACR 39 of 2006
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
CACR 40 of 2006
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Domican v The Queen (1992) 173 CLR 555
Pitkin v The Queen (1995) 130 ALR 35
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller AJA. I agree with those reasons and have nothing to add.
2 BUSS JA: I agree with Miller AJA.
3 MILLER AJA: The appellants were tried with Victor James Calyon on an indictment which alleged one count of aggravated armed robbery in company and one of assault with intent to rob. They were acquitted by direction in relation to the second count, but convicted of the first. It is against that conviction that the appellants appeal. Each of the appellants appeals on the same grounds. They are:
"Ground 1
The verdict of the jury should be quashed on the ground that it is unsafe and unsatisfactory, because of a lack of evidence capable of establishing beyond a reasonable doubt each of the elements of the offence for which the Appellant was convicted, which elements had to be established before the jury could properly convict the Appellant of that particular charge:
- (a) The evidence as to the identity of the offender was inadequate and lacked probative force.
Ground 2
The learned trial Judge erred when he failed to direct the jury adequately about the identification evidence when the circumstances of the case required a warning, such that there was a miscarriage of justice:
(a) The circumstantial identification evidence amounted to the offenders being young Aboriginal males and required a warning tailored to the circumstances of the case and stronger in its terms than that given.
- (b) The warning about the identification evidence of the witness Donna Murray concerning Rankins and Councillor was insufficient and inadequate.
Ground 3
His Honour erred when he ruled prejudicial hearsay material concerning the Appellant could be placed before the jury, which created a prejudice to the Appellant incapable of being overcome by direction.
Alternatively:
Ground 3A
His Honour erred when he failed to adequately direct the jury that prejudicial hearsay material, which inculpated the Appellant, was evidence only against the maker (a co-accused) and not the Appellant."
4 At about 7 am on Monday, 17 May 2004, there was an armed robbery at McCauley's Orelia News. The newsagency was located in a small shopping centre in Orelia Avenue. It opened at 6 am each day. At approximately 7 am, there were customers in the newsagency, one of whom was acting abnormally. This was the appellant's co-accused Calyon. He took a newspaper and a packet of matches, but had not paid for them when a man rushed into the newsagency holding an iron bar. He went behind the counter to Ms Annette Lawty, one of the proprietors of the business. She stepped backwards from the till with her hands in the air.
5 At the same time, a customer known to Ms Lawty pulled up outside the newsagency in his vehicle. As he was about to enter the newsagency, he was seen to be wrestling with a man who was holding a tomahawk in his hand. This man then rushed into the shop with the tomahawk and went behind the counter. The men behind the counter ransacked the shop, the till and the drawers.
6 Ms Lawty was unable to recognise the offenders. She described them as "probably Aboriginal". She said the man holding the tomahawk was the taller of the two. The man with the iron bar had a beanie pulled down to his eyebrows and something tied around his face so that only his eyes were showing. The man with the tomahawk was camouflaged in the
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- same way. The first man who had entered the shop was described by her as dark-skinned and of average height. He spoke with "a little bit of an accent". He had walked out of the shop whilst the armed men were behind the counter.
7 After the men had ransacked the shop, they ran out through the entrance and down an alleyway towards a supermarket.
8 It transpired that the robbers had taken only a small amount of money and a number of scratch and match tickets, commonly described as "scratchies". One of the offenders kept asking Ms Lawty where the safe was, but she replied that there was no safe.
9 The person who had wrestled with the man with the tomahawk was Malcolm John Burnet. He testified that, when he went to get out of his car to walk towards the newsagency, a man came "flying around the alleyway with a balaclava on and a tomahawk in his hand". Mr Burnet told the man that the police were on their way, but the man swung the tomahawk down at him, hitting his wrist as he was opening the car door.
10 Mr Burnet said that the man was dressed in dark clothes. He noticed his eyes staring straight at him through the balaclava, and that he had dark skin. He could tell, particularly from his nose which was poking out of the balaclava, and his mouth, that he was an Aboriginal.
11 It appears that Mr Burnet was not only hit on the wrist, but hit on the head. He had no recollection of this, because he was knocked unconscious. He suffered a fractured skull and a laceration to the side of the face. He was hospitalised for nine days at Sir Charles Gairdner Hospital. He was left with residual disability.
12 The day after the robbery, a woman submitted some scratch and match tickets at the Kwinana Hub shopping centre. These tickets had not been activated because they had been stolen. The machine into which they were placed revealed that the tickets were unactivated and the owners of the lottery kiosk at Kwinana Hub contacted the Lotteries Commission. They received confirmation that they were stolen tickets and the police were called.
13 The woman who produced the tickets was questioned and asked where she got them. She said that two Aboriginal children had given them to her. They were traced back to a person by the name of Josie Ford, who is the aunt of Calyon. At Josie Ford's house, police found a number of stolen scratch and match tickets.
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14 Later on the same day, police went to the house of a Donna Murray. There, they found more scratch and match tickets. Ms Murray had returned to her home in the early hours of the morning of 17 May 2004 and found Calyon in the house with another Aboriginal man. She had attempted to put on the hot water, but found that the hot water system was not working. She went outside to activate the hot water system and saw a third Aboriginal man. He had a roll of scratch and match tickets with him and offered some to her. However, she realised that they must have been stolen and said that she did not want to have anything to do with them.
15 The three men left Ms Murray's house, but, later in the evening, Calyon returned. He was with the same man whom Ms Murray had seen in the house early in the morning.
16 Investigating police asked Ms Murray to identify the three men she had seen. She identified Calyon, whom she knew. She was shown photoboards (described as digiboards) to see whether she could identify the other two men.
17 The prosecutor opened the case on the basis that Ms Murray had picked out photographs of the appellant Councillor as similar to the man she had seen with the tickets by the hot water system, and the appellant Rankins as the other person who had come into the house with Calyon on both the morning and evening of 17 May 2004. This was a correct summation of the evidence in relation to the attempted identification of Councillor, but not Rankins. I shall come to the evidence of Ms Murray shortly.
18 The scratch and match tickets were tested for DNA, but there were no positive results. A piece of chain which was found in a bag with a tomahawk left in bush near the alleyway to the newsagency was tested for DNA and the results were inconclusive. They simply showed that the three accused men could not be excluded as possible contributors to the DNA mix which was found on the chain. In his opening, the prosecutor referred to the DNA evidence as connecting the three accused to the piece of chain, but this was far from the fact.
The identification evidence
19 Although the prosecutor had opened the case on the basis that Ms Murray would effectively identify the two appellants, she did not at any time purport to make a positive identification of either of them. She testified that she lived in Armstrong Road, Hope Valley. She had returned home in the early hours of 17 May 2004 to find Calyon, whom
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- she knew, and a friend of Calyon's in her bedroom. She was not given the name of the friend. She described him in the following way:
"He was slim build, probably the same height as Victor, roughly, and shaven head; yeah, Aboriginal."
" ... I got up to come back inside and there was another Aboriginal man there.
... He was bigger build, solid. He had sort of wavy hair, goatee.
Goatee?---Yep.
You said, I think, he was an Aboriginal man?---Yeah, he was Aboriginal; yeah.
Age?---I think they were basically all roughly the same age.
What would that be?---At the time I think about 26, 25."
21 In the evening, Calyon returned with the same man who had been in the house with him in the morning and with two others. The four of them came into Ms Murray's bedroom and Calyon threw some scratchies on the ground at Ms Murray. The group stayed for about 15 or 20 minutes.
22 About two weeks after the event, Ms Murray went to the Kwinana police station to look at a number of photographs in manila folders. She was asked whether she recognised anybody. She said she did. Her evidence was:
"Was it only one or more than one that you recognised?---Two I recognised.
Two. Was that two on the same board or one on each board?---No, one on each board.
One of [sic on] each board, all right. Do you remember the number of the person that you identified on the boards?---Number 7.
That was on one board. What about the other board?---Number 7 again."
(Page 9)
- It transpired that each of the appellants was shown as photograph number 7 on each of two separate boards.
23 When questioned by the prosecutor, Ms Murray said that, when she made the identification, she had written on each of the boards the word "similar". She elaborated upon what this meant:
"Similar? What do you mean by 'similar' or what did you mean in that case by 'similar'?---They are very similar to the photos. The people that I'd seen very similar to the photos I'd picked out but I'm not sure, give or take a few - well, they could have been a few years old, those pictures of the boys, but they had the same features as the people - - -
The same features?---Yeah.
But I mean, exactly the same? Is that what you are saying?---No."
24 Before being shown the boards upon which she picked out number 7 in each instance, Ms Murray had been shown other boards, on which she had not been able to pick anybody out. No further evidence was led about this, but it would appear that they must have been boards upon which neither appellant was shown.
25 When cross-examined, Ms Murray elaborated upon what she meant by saying that the two persons she had picked out appeared "similar" to the men she had seen. To counsel for Councillor, she said:
"When you said to the police officer who showed the photoboard to you 'Similar, but I wouldn't say he is,' that's what you meant. You are not saying, 'That's the bloke' at all. Correct?---Correct."
26 To counsel for Rankins, she said:
"Would you agree that 'similar' is not the same as, 'That is the man'?---Yes, I would agree.
...
I was saying he was similar in the case of - well, that could have been a few years ago [when] that picture was taken and they do look very alike but I cannot be 100 per cent sure.
(Page 10)
- I will ask it again. You weren't saying that was the man?---No, I was not saying that was the man.
So it's your evidence that the photograph you picked out - you weren't saying that was the man but it was similar to the man?---That's right.
And the points of reference that you took in identifying that photograph was similar eyes and chin shape?---Mm'hm."
Other evidence to support identification
27 Evidence was led at trial from Ryan Bernard Stellaman, a brother of Ms Murray. Stellaman lived in the same house as Ms Murray. He was at home on Monday evening, 17 May 2004. He had arrived home at about 8 pm, at which time he found his father at home, together with his sister, his brother and Victor. Victor was identified as the accused, Victor Calyon. Calyon had two of his mates present. Stellaman walked out into the backyard, where he began talking with Calyon. He was unable to understand what Calyon was saying. One of Victor's mates walked past and Victor said to him, "That's Dennis". Stellaman asked him how he was going. It does not appear that he replied. Stellaman did not know the man's other name and had neither met him before nor seen him since that night.
28 In cross-examination, Stellaman agreed that the Dennis to whom he was introduced could have been "Dennis Woods, Dennis Wallam, Dennis anyone ... ". He agreed that when shown digiboard photographs by police on 28 May, he was unable to identify anybody from those photographs.
29 When re-examined, Stellaman said that he did not know a Dennis Woods or a Dennis Wallam. He was unable to describe the Dennis he met on the night in question, but was able to say that he was an Aboriginal. When asked to comment on his height or weight, he said that he was "skinny". He said that he did not get much of a look at him.
30 Clearly, this evidence did not advance the prosecution case, save to the extent that it established that a man named Dennis was with Calyon on the night of 17 May 2004 at the house occupied by Ms Murray. Although the appellant Rankins was known as Dennis Rankins, the evidence of Stellaman could not support the evidence of Ms Murray in any material way. At best, she identified a man on a photoboard as similar to Rankins and Stellaman said that, on the night of 17 May 2004, there was a Dennis present at the house. The evidence did not and could not establish that the
(Page 11)
- man who Ms Murray thought looked similar to Rankins was, in fact, Rankins.
31 When addressing the jury, the learned trial Judge adverted to the evidence of Stellaman and said that it was of some materiality in relation to the jury's assessment of Ms Murray. He put it this way:
"Do you remember his evidence was concerned with the evening of 17 May, so the evening of the day following?
When he got home Victor was there - he knew Victor, as I understood his evidence - and another person and although he doesn't know the surname you might have no doubt that that was Victor Calyon. He said that he was with two other men of Aboriginal extraction, one of whom was introduced to him as Dennis. So there's a question of whether that provides any evidence which would be to that extent in support of the evidence given by Murray that Dennis, who was introduced in that way, was Dennis Rankins rather than some other Dennis.
That's very much a matter for you to determine and I express no view about it, but if you thought that that was the case then of course you can see that Stellaman's evidence - although he makes no identification of the persons at all himself and didn't make any identification and there is only a description which seemed like the other descriptions to me to be virtually useless to you to say who was who, but nonetheless in that way the evidence might provide some support at least for that aspect of the evidence given by Donna Murray
However, as I say, it's important not to overlook the fact that like her, on 28 May 2004 he was shown photoboards and was unable to identify any person as a person that he saw on that particular night. So far as his evidence is confirmatory, it lies in your conclusions about the significance of those matters to which I have just referred."
32 I am afraid that I am unable to agree with the directions of the learned trial Judge that Stellaman's evidence that he saw an Aboriginal named Dennis could support the evidence of Ms Murray. All that Stellaman was able to say was that he saw an Aboriginal man and that his name was Dennis. He was unable to identify that man on a photoboard. Ms Murray identified a man whom she thought was similar to the appellant Rankins, but that was all. Unless and until somebody had
(Page 12)
- identified the appellant Rankins as having been present at the house of Ms Murray on the night of 17 May 2004, the evidence of Stellaman could not support evidence of his identification.
33 No ground of appeal was raised in relation to this aspect of the case, but it is apparent to me that the evidence of Stellaman could never confirm the evidence of Ms Murray because Ms Murray was never able to identify the appellant Rankins. At best, she identified a man who looked similar to him.
Submission of no case to answer
34 At the end of the prosecution case, counsel for all three accused made a submission that there was no case to answer. The submission was upheld in relation to the second count. In relation to the identification process, the learned trial Judge said:
"The other aspect which is clearly put in relation to both of those accused persons is that the way in which Murray expressed the photoboard identification, such as it was, in relation to each of Councillor and Rankins ought to cause me to take the view that there was no identification at all. I do not do that. What is made of the way in which she expressed herself and the degree of certainty she addressed on the reservation she expressed in relation to that is again, I think, a matter for the jury and if I were to conclude that the identification process fell short of any useful identification in relation to each of those two accused persons, I am quite satisfied that that would be an unwarranted intrusion upon the role of the jury by me as trial judge, and I don't do it."
35 No evidence was called for the accused men and the prosecution case went to the jury. The learned trial Judge informed the jury that general descriptions of the people seen at the newsagency "would not be material upon which you could place any particular reliance one way or the other". His Honour described the DNA evidence as inclusive in the sense that there was no evidence to directly link the items found with any of the accused persons. The evidence in relation to the scratch and match tickets was such that it seemed "pretty clear that they were material which was stolen material ... ".
36 The learned trial Judge informed the jury that the issue of identification of the two appellants was a very important aspect of the case. The evidence of Ms Murray was recounted and it was put to the
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- jury that it was for them to evaluate whether or not this was an identification. The critical passage is as follows:
"It's for you to evaluate what all that means, whether that is an identification that she was making of Councillor, whether she was right and accurate about that. It is of course an important piece of evidence because so far as Councillor is concerned, it is central and crucial to the case. It works in this way, doesn't it, that he had then [sic them] on him, if he was that man, immediately or very soon after the commission of the offence, scratch and match tickets which were apparently in an unactivated form.
So it might be put to you, and is put to you, that it would be a very considerable coincidence if he had those emanating from some other source than this particular robbery in the form in which they were presented by him to Ms Murray and that he had an exchange with her in which he asked her, 'Are you to be trusted?', an inquiry in which you may think was in his mind related to whether she was a person who might take possession and hold, if you like, or something of that kind, the scratchies that he had, and when she said that she knew Victor he gave her, or attempted to give her, those scratch and match tickets.
So it's an exchange which indicates, in the context of his possession of property which came from the robbery, whoever that person was, an association of Victor Calyon ... "
His Honour added:
" ... it's terribly important evidence and you must look at it very carefully and pay careful regard to the weaknesses that have been identified, have particular regard to the weaknesses generally of this process of identification, but it would be open to you, having done all that and you were satisfied that the identification she makes, despite the qualified terms in which she expresses it, was an accurate identification of Councillor, to use that then as evidence against him in relation to his complicity in the offence charged on the indictment."
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- "So is she saying there - I mean, it's for you to say what she's saying, what her state of mind is and what she's actually doing, but is she saying there, 'These are the people. Although the photographs appear slightly different, I attribute the difference to the fact that the photographs weren't taken contemporaneously with when I saw them,' or is she saying no more than, 'These look like the people but I just can't be certain if they're the same people,' in which case of course the evidentiary value of that material evaporates?"
38 This latter direction gave to the jury the option of concluding that the evidence of Ms Murray was evidence of positive identification, or, alternatively, concluding that it was something less than positive identification.
39 Warnings were given about the dangers of identification evidence. The warnings were more or less in terms of the direction suggested in Domican v The Queen (1992) 173 CLR 555 and were suited to a case of positive identification, not a case in which the identifying witness had simply singled out persons as looking similar to those whom she saw on the morning and/or night in question.
Grounds of appeal
Ground 1
40 Ground 1 of the grounds of appeal of each of the appellants contends that the verdict of the jury should be quashed on the ground that it is unsafe and unsatisfactory because of a lack of evidence capable of establishing beyond reasonable doubt each of the elements of the offence of which the appellants were convicted. In particular, it is contended that the evidence as to identity of the offenders was inadequate and lacked probative force.
41 There can be no doubt that, unless there was evidence of identification of each of the appellants as the persons present with Calyon at Ms Murray's house on the morning and/or evening of the day of the robbery, there was no case against them. All that the case otherwise proved was that three men had been involved in a violent robbery on the morning of 17 May 2004 at McCauley's Orelia News and that a sum of money and scratch and match tickets had been stolen. Scratch and match tickets were in the possession of Calyon and one of the two men who attended at Ms Murray's house. Those scratch and match tickets linked Calyon and one of the two men to the robbery. Without identification of
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- the two men, there could never be any case against them. At its highest, the prosecution case would be that Calyon and two men had clearly conducted the robbery and gone to the home of Ms Murray where Calyon and one man were in possession of stolen scratch and match tickets which matched those taken from the newsagency. Unless and until the two men were identified, they could not be linked to the crime.
42 The learned trial Judge considered that it was for the jury to determine whether there had been identification of the appellants by Ms Murray. He very fairly and fully put her evidence before the jury.
43 However, it seems to me that this was a fundamental error. There was never evidence of identification sufficient to go to the jury. Ms Murray's evidence was only that the persons she picked out on the photoboards looked similar to the two men who had been at her house on the day of the robbery.
44 The case is similar to Pitkin v The Queen (1995) 130 ALR 35. There, a victim had her bag snatched and the offender fled in a stolen vehicle. The only evidence which linked the accused man to the offences was a description from the victim and the identification by another witness of three photographs of the accused. She said of the person in the photographs, "This looks like the person". Deane, Toohey and McHugh JJ, at 37:
"Obviously, the fact that an accused person 'looks like' a person who in fact committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime. Yet, prima facie, the evidence led against the appellant in the present case went no further than that. Once it is accepted that the appellant 'looks like' the offender, Ms Vella's selection of three photographs of the appellant with the comment 'This looks like the person' prima facie proves nothing more than what she said."
- In the Court of Criminal Appeal of New South Wales, Levine J (who delivered the main judgment) approached the matter in a manner very similar to the approach of the trial Judge in this case. Levine J said (in a passage quoted at 37 - 38):
"A jury is usually instructed to apply its worldly wisdom and common sense and those qualities are not to be abandoned by an appellate court in performing its function as a matter of law in determining whether verdicts are unsafe and unsatisfactory.
- It is my view that one should not be too quick to impugn language used by an identifying witness. To my mind common sense dictates that it cannot reasonably be expected that every person who embarks upon the exercise of identification, will at the appropriate time and in the appropriate way assert positively, 'that is the person that I saw … '. It was open to the jury to understand the expression 'that looks like the person that I seen … ' as a manner of speech amounting to positive identification by that lady whom the jury had had the benefit of seeing and hearing."
- Deane, Toohey and McHugh JJ said, at 38:
" … his Honour's statement that Ms Vella 'made a positive identification' attributes a different meaning to Ms Vella's comment from the meaning which the words which she used literally convey.
The real point of what is said by Levine J in the above extract from his Honour's judgment would seem to lie in the second and third paragraphs. Obviously, as his Honour pointed out, both a jury and an appellate court should not abandon wisdom or common sense. However, neither wisdom nor common sense supports the conclusion that, in circumstances where the Crown case against an accused rests solely on a witness' purported identification of him through being shown photographs in a police station, that identification need not be clear and unambiguous."
Their Honours added, at 39:
" … If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. That point was made by Mason CJ, Dawson and Toohey JJ in Knight v R (1992) 175 CLR 495 at 502-3; 109 ALR 225 at 231:
'In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is
- to remain upon the prosecution is well recognised. As Dixon J said in Martin v Osborne (1936) 55 CLR 367 at 375:
"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation."
In Plomp v R (1963) 110 CLR 234 at 243 Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said "has not been overcome by employing the expression 'more consistent' as if there could be degrees of consistency" …
There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.'
- Under our system of administering criminal justice, a person is not to be convicted of serious crime on the sole basis of a verbal ambiguity.
In the present case, the words used by Ms Vella in selecting the three photographs did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by Ms Vella to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen. It may well be, as Levine J speculated, that Ms Vella did intend to convey, by the words that she used, that the person depicted in the photographs actually was the offender. It may also well be, as Hunt CJ at Common Law suggested in his judgment, that the phrase 'that looks like' was used in a colloquial sense by Ms Vella and was 'certainly capable in [the] circumstances of asserting an identification of the appellant'. None the less, the plain fact remains that the words used by Ms Vella were consistent with
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- an absence of positive identification. That being so, the evidence of her selection of three photographs was, of itself, incapable of sustaining a finding by a reasonable jury that the appellant was, in fact, the person who stole Ms Clarke's handbag and was driven off in the stolen vehicle."
45 In my view, the passages I have quoted above are of direct application to the present case. The evidence of Ms Murray could not be categorised as positive identification. The learned trial Judge thought (as did the Court of Criminal Appeal in Pitkin (supra)) that it was for the jury to determine whether Ms Murray's words amounted to a positive identification, or whether they did not. But the words were plainly inconsistent with any positive identification by Ms Murray. They were consistent with an intention on her part to indicate nothing more than that the persons depicted in the photographs were similar to the persons she had seen. She was pressed about it in cross-examination and she clearly explained that she was not going to say that the person in the photograph was the person she saw, but only that there were similarities between the person in the photograph and that person. To counsel for the appellant Councillor, she clearly conceded that she was not saying, "That's the bloke" at all. To counsel for the appellant Rankins, she said, "I was not saying that was the man".
46 Although in Pitkin it was thought that there was some verbal ambiguity about the way in which the witness had identified the offender, there was no ambiguity in the present case. Ms Murray was quite clear that she was not saying that the persons identified on the photoboards were the men she had seen on the morning and/or night in question.
47 It follows, in my view, that, in the absence of any other evidence to link the appellants to the robbery (and clearly there was none), the convictions were unsafe and unsatisfactory and must be quashed. It becomes unnecessary to consider grounds 2, 3 and 3A of the grounds of appeal.
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Criminal Liability
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Appeal
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Res Judicata
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