Neilly v R
| Jurisdiction | UK Non-devolved |
| Judge | Sir Stanley Burnton |
| Judgment Date | 10 May 2012 |
| Neutral Citation | [2012] UKPC 12 |
| Court | Privy Council |
| Docket Number | Appeal No 0112 of 2010 |
| Date | 10 May 2012 |
[2012] UKPC 12
Lord Hope
Lord Mance
Lord Dyson
Lord Sumption
Sir Stanley Burnton
Appeal No 0112 of 2010
Privy Council
Appellant
David Farrer QC
Jonathan Bertram
(Instructed by S J Berwin LLP)
Respondent
Howard Stevens
(Instructed by Charles Russell LLP)
Heard on 20–21 March 2012
This is another case in which the admissibility of a dock identification falls to be considered.
On 18 October 1999, the Appellant was convicted, by a majority verdict of 10 to 2, of 10 counts of armed robbery and of one count of possession of a firearm with intent to endanger life. On 25 October 1999, he was sentenced to 20 years' imprisonment on each count of robbery, to run concurrently, and to 5 years' imprisonment for the firearms offence, to be served consecutively. He was given leave to appeal against the robbery convictions. His appeal against those convictions to the Court of Appeal of the Commonwealth of The Bahamas (Zacca P, Churaman and Ganpatsingh JJA) was dismissed on 7 September 2000. It was not until 13 December 2010 that his notice of appeal to the Judicial Committee of the Privy Council was filed. Special leave was granted on 15 March 2011 and his appeal heard on 20 March 2012.
During the evening of 15 January 1998, two men committed an armed robbery at the Comfort Zone Restaurant, New Providence, Bahamas. It was the prosecution's case that the Appellant was one of the two men involved. One of them was armed with what was described as an Uzi-type automatic firearm; the other had a shiny or chrome handgun.
On 17 January 1998, outside a house in Haven Road, Nassau Village or Redland Acres the Appellant was arrested with Roland Cartwright and Devaughn Rolle for the armed robbery at the restaurant. It was the prosecution's case that during the course of the arrest, the Appellant fired at the arresting police officers as they approached him. It was the Appellant's case that the officers fired at him without provocation and that he did not return fire. The Appellant sustained injuries from what occurred during the arrest and he required hospital treatment. Upon arrest, the Appellant was found in possession of a silver and black handgun and two items of jewellery, which were later identified as items stolen during the robbery. Other items stolen in the robbery were also found in the house.
An identification parade was held on 17 January 1998. Both Cartwright and Rolle participated. The Appellant was then in hospital, being treated for the injuries he had suffered when he was arrested. Six witnesses to the robbery attended the parade. Two of them identified Cartwright as one of the robbers. They did not identify Rolle. The other witnesses who attended the parade made no identification.
The Appellant was discharged from hospital on 27 January 1998. When told that he was suspected of the armed robbery at the Comfort Zone Restaurant he denied the offence, saying that he had been "in the back of South Beach in Farmer Brown yard all night". He did not thereafter participate in any identification parade.
The Appellant, Cartwright and Rolle were jointly charged with ten counts of armed robbery at the Restaurant on 15 January 1998, contrary to section 360 (2) of the Penal Code of the Commonwealth of the Bahamas (counts 1–10). The Appellant was also charged with one count of possession of a firearm with intent to endanger life on 17 January 1998, contrary to Section 23 of the Firearms Act (count 11) and two counts of receiving stolen property between 15 January 1998 and 17 January 1998, contrary to section 379 of the Penal Code of the Commonwealth of The Bahamas (counts 12 and 15). The receiving counts were alternatives to the armed robbery counts.
The Appellant and his co-defendants were tried before the Supreme Court between 5 May 1999 and 11 May 1999. This trial was aborted when two jurors were discharged for personal reasons and the judge discharged the remainder and directed that there should be a retrial. The second trial, to which we shall simply refer as "the trial", took place between 4 and 18 October 1999.
At the trial, before Allen J and a jury, the prosecution called a number of witnesses who had been present when the robberies were committed. No one purported to identify the Appellant, other than Larry Fernander. Mr Fernander had not been invited to attend any identification parade. He testified that one of the robbers, the man with the machine gun, had taken his bracelet, which was one of the items recovered from the house in Haven Road, together with his wallet and mobile telephone. He had had a view of his face, and could recognise him if he saw him again.
Counsel for the Appellant objected to any attempt at a dock identification. The witness and the jury withdrew while submissions were made as to whether the dock identification should be permitted. Counsel for the Appellant submitted that to allow the witness, who had not previously identified anyone or even indicated that he could do so, to purport to identify one of three persons in the dock, would be inconsistent with the authority of the Court of Appeal in Sheldon Alleyne v R Case No. 50 of 1989. Counsel accepted that a dock identification was legally admissible, and that the judge had a discretion to exclude it if she felt that the effect would be more prejudicial than probative. He submitted that the dock identification, if admitted, would be more prejudicial than probative, and should be excluded.
Counsel for Rolle informed the judge that in the previous aborted trial, the witness had not identified anyone. That he said he could do so was new. He said that the judge could take judicial notice of this. The judge said she could not do so, since she did not know, among other things, what the witness had been asked at that trial.
Counsel for the prosecution was unable to say why Mr Fernander had not been given the opportunity to attend an identification parade. His submissions focused on the opportunity the witness had had to observe the robbers, and his witness statement to the effect he would be able to recognise one of them. He did not refer to the risk that the witness would identify one of the defendants simply because he was in the dock.
Giving her ruling, the judge said:
"I am going—I'm satisfied that the parameters which are set in the case of R v Turnbull have been laid. I am going to allow, in my discretion, the dock identification by Mr. Fernander of the person whom he says held the Uzi or the machine gun, and whom he said he observed for two to three minutes, and whom he said was at one point close—as close as two feet away from him. I am going to, as I said, exercise my discretion and allow the dock identification, for what it's worth."
Mr Fernander and the jury then came back into court. He then said that the robber whom he could identify was the man with the hand gun. The witness then identified the Appellant as the man with the chrome hand gun. He was shown the hand gun recovered when the Appellant was arrested, and said that it looked very much like the gun used in the robbery. However, in cross examination Mr Fernander reverted to saying that the man he had identified was the man with the machine gun.
The prosecution called a number of police officers who gave evidence relating to, among other things, the shooting, arrest and subsequent searches of the house in Haven Road and of the defendants. Detective Constable Nixon gave evidence that when he and other officers arrived at the house the Appellant pulled out a silver handgun, pointed it in his direction and fired several shots, and that he returned fire. Constable Farrington likewise gave evidence that the Appellant opened fire and that he took cover and returned fire. Sergeant Hinzey gave evidence that he searched the Appellant and seized a number of items. These included items which were the subject of count 12, one of the counts of receiving.
Inspector Melvin Lundy gave evidence regarding the identification parade held on 17 January 1998 and the identification of Roland Cartwright by two witnesses. The Appellant had been in hospital and did not participate in the identification parade.
Finally the prosecution called Clement Paul (also known as Farmer Brown). Mr Paul gave evidence that he had seen Mr Rolle in his yard on the night of the robbery, but that he had not seen the Appellant.
Following the close of the prosecution case, counsel for all three defendants submitted that there was no case to answer. Counsel for the Appellant relied on the weakness of the identification evidence, and the well-known authority of Galbraith. Rejecting the submission on behalf of the Appellant, the judge said:
"With respect to Terrell Neely, I simply find the evidence of a sufficient quality to safely leave to the jury to assess. I am satisfied that all of the factors which Turnbull says ought to be present are present, and I am going to leave that evidence to them. I accept that there is one witness that the identification was not tested on identification parade, however, I am satisfied that in the circumstances that there was a good reason for not holding the ID parade for Neely. In addition to that, there is the evidence of recent possession of some of the goods allegedly stolen which may support the correctness of the identification by Mr. Fernander. In the circumstances, I find that Terrell Neely has a case to answer on the counts of robbery and I am going to leave those to the jury for their consideration."
However, the judge upheld the submission made on behalf of Nolle, and withdrew the counts charging him...
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