Courts of Appeal
| Published date | 01 February 1980 |
| Date | 01 February 1980 |
| DOI | http://doi.org/10.1177/002201838004400104 |
| Subject Matter | Article |
Courts
of
Appeal
Comments
on
Cases
PITFALLS OF EVIDENCE OF VISUAL IDENTIFICATION
R. v.
Hunjan
The guidelines laid down by the Court
of
Appeal in R. v. Turner
[1976], 3 W.L..R. 445 are nothing if not restrictive
of
judicial discretion
in putting to the jury as they think the occasion warrants aquestion of
visual identification. In R. v. Hunjan 68 Crim. App. Rep 99, however
the court has once more emphasised that trial judges must follow these
guidelines, since their failure to do so will almost inevitably lead to the
quashing of any conviction arrived at after such a failure. Hunjan was
convicted
of
aconspiracy to possess and supply a controlled drug,
namely morphine, contrary to sA of the Misuse of Drugs Act 1971.
His conviction arose out
of
acombined operation of the Drug Squad,
who had received a
'tip-off
that some 71b.
of
morphine was on the
market, awaiting a buyer. Two members of the Squad met one, Chandal
and arranged to buy lIb.
of
morphine. In the course
of
further negotia-
tions, they met another man, whom they "lateridentified as Hunjan. He
was eventually arrested and convicted. The evidence against him included
evidence of identification by the two officers who said that they had
met him and by two other officers who had kept watch from a car, one
of whom had been within five yards
of
him. One would have thought
that no case could be less controvertable. On appeal, however, it was
argued that, as three
of
the officers had seen a photograph
of
the
appellant, aparticular warning ought to have been given to the jury
as to the dangers
of
accepting evidence
of
identification, the more so
as the jury heard evidence of the interrogation
of
two co-defendants in
the absence
of
the appellant, in which interrogation reference was made
to a man alleged by the prosecution to be clearly the appellant.
11
The judge's direction did not follow R. v. Turner, in that he failed
to give the jury any
of
the 'specific' warnings required by that decision.
Moreover, the judge failed to mention to the jury that the prosecution
had abandoned the point that the appellant's brother had said that he
lent the appellant the car which had been used on the occasion,
but
invited the jury to accept the whole
of
the brother's evidence, so that
the jury were wrongly left with the impression that there was corrobor-
ation
of
the identification evidence. All this meant that the judge had
failed, or failed adequately, to give the correct direction. The court
refused to apply the proviso and quashed the conviction. The Drug
Squad would be less than human if they did not feel that the require-
ments laid down in R. v. Turner are too rigid and too detailed to ensure
that justice is done.
LIMIT OF
RIGHT
TO CONDUCT OWN DEFENCE
R. v. Lyons
Upon his conviction
of
perjury, the defendant in R. v. Lyons 68
Crim. App. Rep. 104 obtained from the trial judge a certificate
of
leave to appeal upon the questions whether the judge had properly
exercised his discretion in refusing the appellant an application to
dispense with his counsel's services and in refusing to allow the appel-
lant to give his reasons for his application. The appellant had been
prosecuted on the basis
of
a false statement in an affidavit in the course
of
litigation with his accountants, to the effect that he had been advised
by two eminent members
of
that profession that his accountants'
bill was exorbitant. When the prosecution had given evidence to this
effect, the defendant made a personal application to the judge to be
allowed to conduct his own defence. The judge adjourned the case for
half an hour and when he was told that the defendant had not changed
his mind, he asked counsel whether he would be embarrassed - by
which he meant forensically embarrassed - in continuing to represent
the defendant. On being told that counsel would have no difficulty in
doing so, the judge refused the application, holding, on the authority
of
Archbold's Criminal Pleading
(39th
edn., para
35Ia),
and R. v.
Woodward [1944] 29 Crim. App. Rep. 159
that
he had an absolute
judicial discretion to refuse to release counsel. The defendant there-
upon attempted to give his reasons for wishing to conduct the rest
of
his defence himself
but
the judge refused to allow him to do so.
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