Judicial Committee of the Privy Council
| Author | J A Coutts |
| Published date | 01 November 1994 |
| Date | 01 November 1994 |
| DOI | 10.1177/002201839405800404 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
NEED FOR A TURNBULL DIRECTION
Farquharson v R
The strictness with which the courts may on occasion require a Turnbull
direction in a case in which identification is the sole issue could not be better
illustrated than in the decision of the Privy Council in Farquharson vR
(1994) 98 Cr App R 398 to advise that the appellant's conviction of murder
be quashed. The deceased was the conductor of a bus who had a dispute
with two passengers as to the payment of their fares. One
of
the passengers
shot him dead. The appellant swore that he was never on the bus, but the
driver swore that he had seen him on the bus on an earlier occasion, on
which, too, there had been a dispute about the payment
of
the fare. He
swore that he recognised him on the second occasion (on which the
conductor was shot) and on two later occasions, some months afterwards.
His identification was firm:
'Don't
feel like him look like him, I know is him.'
The jury unanimously convicted after only eight minutes' consideration,
following a most elaborate treatment
of
the question
of
identification in the
judge's direction. In the Court of Appeal
of
Jamaica, counsel for the
appellant conceded that the judge had 'significantly covered the main
grounds of identification', so that he was unable to argue any grounds
of
appeal; and the Court of Appeal, in dismissing the appeal, agreed with
counsel that 'the issue of identification was left to the jury in the appropriate
manner'. In an appeal to the Privy Council by special leave, however, two
submissions were made on behalf
of
the appellant.
It
was said, first, that the judge should have withdrawn the case from the
jury, as the evidence of identification was poor. This submission was based
on the observations of Lord Widgery CJ in RvTurnbull
[1977]
QB 224, but
it will be remarked that that statement was made in relation to the sort
of
identification which is based 'for example on a fleeting glance or a longer
observation made in difficult conditions'. The question eventually raised in
this case was whether those words could be said to be apt in describing the
present identification. The appellant also called in aid the judgment of Lord
Ackner in Junior
Reid
vR
[1990]
AC 353, to support his submission that the
judge misdirected himself in rejecting a claim that there was no case to
answer, such rejection being for the reason that if there is any evidence
which would suggest a conviction, the case should go to the jury. Upon
these submissions, the court first remarked that the dicta in the cases
preceding R v Turnbull (per Lord Widgery CJ in R v Barker (1975)
65 Cr App R 287 and per Lord Lane CJ in R v Galbraith
[1981]
1 WLR
1039) were less favourable to the accused than those in R v Turnbull itself.
But the Board was content to say that, even when applying the Turnbull
test, the judge was here correct to leave the case to the jury, as it was
obviously a case for the jury, properly directed, to decide for themselves
whether the appellant had been properly identified as the assailant.
382
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