Hyde v The Queen
| Jurisdiction | Belize |
| Judge | Sosa, J.A.,SOSA, J.A.,MORRISON, J.A. |
| Judgment Date | 27 March 2009 |
| Neutral Citation | BZ 2009 CA 4 |
| Date | 27 March 2009 |
| Court | Court of Appeal (Belize) |
| Docket Number | Criminal Appeal No. 18 of 2007 |
Court of Appeal
Mottley, P.; Sosa, J.A.; Morrison, J.A.
Criminal Appeal No. 18 of 2007
B S Sampson SC for the appellant.
C Branker-Taitt, Director of Public Prosecutions (Acting), for the respondent.
Evidence - Identification — Recognition — Whether trial judge should have warned the jury about the absence of an identification parade.
In the early hours of 9 October 2004, 16 — year — old Dual Wagner junior (‘the deceased’) sustained a single firearm injury to the forehead whilst stepping out of a bathroom at the Bismark Club in Belize City and died at the Karl Heusner Memorial Hospital. On 6 August 2007, following a trial before Gonzalez, J. and a jury, Dean Hyde (‘the appellant’) was convicted of the murder of the deceased and, on 17 August, he was sentenced to imprisonment for life.
The Crown relied at trial on evidence of visual identification given by a single eyewitness, Carlton Lord.
There had, according to Mr. Lord, been a previous acquaintanceship between him and the appellant whom he knew by his name, Dean Hyde, as well as by his nickname, Barn. The acquaintanceship spanned a period of about ten years during which, according to Mr. Lord, he would see the appellant every day and exchange greetings with him. He had seen the appellant on the previous Thursday night, that is to say, the night before the fateful one of 9 — 10 October.
Mr. Lord further testified that, on the latter night, he saw the appellant at or near the Bismark Club at five different times.
First, he met, and exchanged greetings with, the appellant as he (Mr. Lord) was leaving the bathroom. This was obviously a very close encounter. The appellant actually touched Mr. Lord on the chest whilst greeting him; and, when Mr. Lord pointed out in court the distance between them at the time, Mr. Sampson SC (counsel for the appellant at trial as well as on appeal) estimated it at between two and three feet only.
Mr. Lord had an unobstructed view of the appellant for a second time that night sometime later when the latter went by from one part of the building to another as he (Mr. Lord) sat in a chair smoking a ‘stick’ of marijuana. The distance between Mr. Lord and the appellant on this occasion was pointed out in court and estimated by the judge at 12 feet.
Mr. Lord saw the appellant for a third time, from the side on this occasion, whilst still sitting in the chair smoking the ‘stick’ of marijuana. On this occasion he turned his head to the left in time to see the appellant raise his right hand and fire a single shot from a black gun. This occurred at the same time that a young man, who turned out to be the deceased, began stepping out of the bathroom. The deceased thereupon fell to the ground in front of the bathroom. Mr. Lord pointed out the distance separating him from the appellant at this time. This was estimated at 7 and 12 feet, respectively, by the judge and Mr. Sampson.
The appellant was seen by Mr. Lord for the fourth time that night a little later when the former, whilst still in the club, directed certain words and gestures at a crowd of onlookers in which Mr. Lord found himself. The distance between the two men, when pointed out by Mr. Lord, was estimated at 30 feet by Mr. Sampson. On this occasion Mr. Lord again had a view of the whole of the appellant's face and, again, it was unobstructed.
The fifth and final view of the appellant was had shortly thereafter, outside of the club. At this time Mr. Lord was in a crowd of people across the street that runs in front of the club. He saw the appellant, with two companions, come out of the compound of the Bismark, turn left and leave the area. He did not indicate whether this, too, was an unobstructed view.
It should also be pointed out that it was the testimony of Mr. Lord that the appellant was in brightly lit areas at all material times.
Mr. Lord testified to the effect that, all told, it was for a total of five minutes that he saw the appellant on the night ofthe shooting.
Thereafter Mr. Lord was led to make a dock identification of the appellant notwithstanding the absence of any suggestion, let alone evidence to show that the police had held an identification parade at any stage of their investigations.
It should be borne in mind that, consistently with the defence of alibi which he was to run, the appellant did not dispute any of the finer details, for example those as to lighting, of Mr. Lord's evidence in respect to the different viewings. What is more, although in no wise prevented from so doing by the nature of his defence, the appellant did not, through counsel during cross-examination, touch on the issue of the alleged acquaintanceship between Mr. Lord and him. The topic was, remarkably, also completely avoided in the course of the appellant's examination-in-chief. Indeed, the sole mention of Mr. Lord's name during that examination occurred when Mr. Sampson asked the appellant whether he had listened to his (Mr. Lord's) evidence.
The Crown, for its part, did not bring up the point in cross-examination and was, in the view of this court, under no obligation whatever so to do.
Prosecuting counsel's remark to the jury in the course of her closing speech that ‘[t]he identification evidence in this case is ideal’ was by perbolic, but certainly not in any large degree.
Arguing his first ground of appeal, Mr. Sampson complained as follows:
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‘1. The judge failed to warn the jury of the dangers of identification without a parade.
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2. He did not explain to the jury the potential advantage of an inconclusive parade to (sic) the appellant.
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3. He did not state that dock identification was undesirable in principle.
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4. He failed to direct the jury that they were required to approach dock identification evidence without a prior parade with great care.’
It is true to say that the judge did none of the things which, in terms of counsel's complaint, he either failed to do or simply did not do. Counsel for the respondent rightly refrained from suggesting that the judge did any of them. It is also true that in Aurelio Pop v. The Queen [2003] UKPC 40, the Privy Council held, on an appeal from this court, that Gonzalez, J. had, in summing up to the jury, wrongly omitted to do each of the very four things that Mr. Sampson, in the instant case, says that the same trial judge ought to have done. Does that mean that Mr. Sampson's fourfold complaint is valid in the circumstances of this case? The court considers that this question admits only of an answer in the negative.
A good starting point is the relatively recent Privy Council case of Francis Young v. The State [2008] U.K.P.C. 27, in which judgment was delivered on 23 June 2008. In that case, Lord Carswell, delivering that judgment, and having referred to both Pop and Pipersburgh v. The Queen [2008] U.K.P.C. 11, said, at para. 17:
‘The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification. Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.’ [Emphasis added.]
In the view of this court, whilst the first sentence of this quotation reflects what had been clearly stated in Pop and Pipersburgh, the second sentence simply says that which was taken as understood in the judgments in both of those cases. The underscored sentence is in short, not inconsistent with anything said by the Board in Pop and Pipersburgh. (It is, in fact, the case that Lord Hope of Craighead. who was on the panel in Pop, and Lord Rodger of Earlsferry, who delivered the judgments of the Board in both Pop and Pipersburgh. were both also on the panel in Young's case.)
The even more recent Privy Council appeal of Nyron Smith v. The Queen [2008] U.K.P.C. 34, in which judgment was delivered on 23 June 2008, is also of assistance. Delivering that judgment also, Lord Carswell said, at para 27:
‘If a parade is not held, the court may have to consider the effect of its absence on the fairness of the trial and the safety of the conviction. In doing so it will have regard to the strength of the prosecution case on the evidence adduced, including the quality of the identification of the suspect by the witness. Their Lordships have given consideration to this issue and have reached the conclusion on the facts of the present case that the absence of a parade was not sufficient to render the trial unfair or the conviction unsafe.’ [Emphasis added.]
In this case, again, the judgment of the Board cites with unqualified approval its earlier judgments in both Pop and Pipersburgh. It is also to be noted that Lord Hope of Craighead and Lord Rodger of Earlsferry were both on the panel in Smith's case.
The court now turns from broad and general statements of principle to one both narrow and particular. In R v. Forbes [2000] U.K.H.L. 66 (14 December 2000), Lord Bingham of Cornhill, giving the considered opinion of the Appellate Committee of the House of Lords, cited a report issued in England in 1976 by a Departmental Committee working under the distinguished chairmanship of Lord Devlin. Lord Bingham quoted as follows from pare 8.7 of the report (Report to the Secretary of State for the Home Department of the Departmental Committee an Evidence of Identification in Criminal Cases, HC 338, 1976):
‘Identification on parade or in some other similar way in which the witness takes the initiative in picking out the accused should be...
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