Yim Yau-tim and Another v. The Queen
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CACC000754/1982 Necessity for informing the jury of the reasons for a Turnbull warning on identifications honest witness may be mistaken. IN THE COURT OF APPEAL
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 18th February 1983 _____________ JUDGMENT _____________ Silke, J.A.: 1. On the early morning of the 25th September 1981 a girl, a night club waitress, was returning home from work. She had noticed two persons behind her whom she thought to be ordinary pedestrians, and who were making teasing remarks. When she reached the entrance to the building in which she lived, at Shaukiwan Road, the two persons rushed in. One man had a knife which he held at her neck, the other man went past her and up the second flight of stairs beyond the first landing. The area was well lit there being a strip of fluorescent lighting. 2. The knife man told her it was a robbery, the non-knife man came back down the stairs. She then produced her purse and surrendered her money to the men. They thought it to be too little and said they wanted to search her person. She gave them her handbag but they did not think it convenient to carry out a body search at the staircase. 3. It was her evidence in chief that the two men then "flanked" her from the stairs, out of the entrance, along the side of the next door bank and across Sun Sing Street to a construction site on the other side of the road. There was street lighting for that part of the journey. 4. At the construction site, which was dark, she was fondled by both men and she was raped by the man with the knife. The non-knife man had removed her trousers prior to her ravishment and had taken her watch from her when the episode concluded. 5. It was not suggested that the non-knife man had actual sexual intercourse but that he was the onlooker and the aider and abetter. 6. Both appellants were convicted after trial upon the robbery and the rape counts. They appeal against those convictions - and the sentences passed upon them, in the case of the 1st appellant seven years and eight years concurrent and in the case of the 2nd appellant six years on each count concurrent, - by leave of the single judge. 7. The grounds of appeal against conviction filed on behalf of the 2nd appellant were seven in number: the seventh and last being the roll up ground that there was insufficient and/or unreliable evidence upon which to convict the appellant and that the verdict was contrary to the evidence. 8. The grounds filed on behalf of the 1st appellant are basically the same as those filed on behalf of the 2nd and, while he was separately represented, Mr. Sedgwick who argued the appeal on his behalf adopted and elaborated upon, the grounds argued by Mr. Hoo for the 2nd appellant. It is convenient, generally, to deal with both appellants together. The basic complaint was the identification of the appellants or rather its doubtful nature. There was no direct supporting evidence. 9. While the first of the seven grounds we thought not to have substance some mention should be made of it. It concerned the amendment, during the course of the trial, of the dates in the two counts from the 24th of September to the 25th of September. This came about because, in a statement made by the girl on the 26th of September at a few minutes past midnight, the word "yesterday" was used. There was clear evidence that the girl upon reaching her home had told her husband of the robbery but not of the rape, then after some sleep and the day's thought, she discussed the matter again with her husband. She was reluctant to make a report to the police but he persuaded her to do so. She went on that evening and, after a wait of some time, made the statement to which I have referred. This spoke of both the rape and the robbery. There can be no doubt that, upon a proper evaluation of her evidence, the report to the police was made on the evening of the day upon which the incident happened. That is the 25th. 10. While this alteration, and we do not think that the trial judge had any alternative but to make the amendments, might have affected the alibi sought to be produced by the 2nd appellant, that alibi evidence was such that it basically went to show that the appellant would have been out of character in leaving his premises at the hour of the incident -3:30 a.m. - rather than positively showing that he was in those premises at that time. 11. The grounds of appeal which we thought to have substance were the third, fourth and fifth grounds. The sixth ground was abandoned. 12. These were:
Again they can be conveniently dealt with together. 13. The sequence of the sights that the girl had of the two men was as follows: at the entrance and the stair-case, where the lighting was good but the girl was then under pressure in that a knife was held to her neck: on the journey from the building to the construction site where the lighting was not good. On the face of it these two sightings would seem to take the matter outside the Turnbull(1) "fleeting glimpse" situation and take it a little beyond the "longer observation in difficult circumstances" situation for all this took a some time. Further, while it is correct that the girl was under pressure she was not entirely unprepared for that which occurred for she and her workmates had, on earlier occasions, discussed similar type robberies and what should be done when they occurred. 14. There was some confusion between her evidence in court and that which she said in statements to the police as to whether the two men flanked her - that is, walked with her side-by-side - as they went down the stairs and out on to the street on the way to the construction site, or whether they were walking behind her. It is not easy to walk three abreast down fairly narrow stairs as the girl indicated they did. In her statement on the early morning of the 26th September she made reference to a knife being pointed at her loin and that the knife man's hand was on her shoulder and she said that the non-knife man was following behind. If so, then this would diminish the possibility of having a good sight of the men in the course of the journey. She did, however, say in evidence that while they were walking she had looked around to see if there were any pedestrains about to whom she could appeal for help and that while doing so she could see the two men. 15. She attended two identification parades. One was held on the 20th October upon which she identified the 1st appellant. The second was held on the 30th October upon which she identified the 2nd appellant. 16. In court she identified the appellants thus. "The one who raped me is wearing a blue, dark blue denim jacket" - this was the 1st appellant - "The man unarmed is now wearing a suit" - this was the 2nd appellant. 17. She had earlier said in evidence that she could see their faces at the time of both the initial meeting at the staircase and later during the course of the walk to the construction site. 18. So far this was evidence properly to be left to the jury given correct directions as to the dangers of identification evidence. 19. But serious difficulties did arise on the difference between that which the girl said in her first statement as to her capability of making an identification and her evidence in the trial as to a positive identification. Further and in addition to this there was a direct conflict between the evidence of Chief Inspector Sit of that which the girl said immediately upon her identification of the 1st appellant and the evidence of the girl. 20. There also arose in respect of the 2nd appellant the matter of the girl's description of him as having a moustache. There was clear evidence capable of belief that, certainly around the 25th September 1981, he did not have a moustache. 21. In the statement, having described the man who raped her, the girl then continued:
22. She went on to describe the unarmed man by saying "he seemed to have a beard" and further "If (I) see him again it may not be possible to identify him.? 23. She gave an explanation for these differences between her statement and her evidence in court. She said the matter of "not clear of his face" was a misre-cording by the statement taker. What she meant was that she was asked to give a description of the man's face but she was unable to do so. 24. She did agree that she said of the unarmed man that she might not be able to identify him. She explained this by saying that she was afraid she would be asked to make an identification and that she was afraid to attend an identity parade. 25. Chief Inspector Sit, who conducted the parade on the 20th October, gave it in evidence that the girl looked at the parade and said "No. 8". The witness continued:
She was quite positive in re-examination that the girl had said this to her. As I have indicated, it was, of course, the Crown's case that the man on the first parade was the man with the knife, the man who raped the girl and that this was the first appellant. 26. I would interpolate here that there had been another identification parade on the 27th October upon which no identification was made by the girl. Then came that of the 30th October when the 2nd appellant was identified and without comment. 27. In cross-examination the girl was taxed with these discrepancies in a somewhat convoluted and lengthy question, based on a further statement she had made on the 9th November. That statement, or as much of it as was put to her in evidence, consisted of a question put by a Woman Detective Sergeant who seeking to clarify the stand-by versus rapist discrepancy. What answer the girl made to the Sergeant we do not know for at the end of counsels question no reference was made to it. But the girl positively denied that she at any time said that the 1st appellant was identified as the one who stood by or that she changed this later to say that he was the rapist. 28. All this was before the jury, and very properly so, and was fully covered in the course of the summing-up. At the close of the prosecution case we do not think the identification was so poor as to depend solely on a "fleeting glimpse" or even on a "longer observation made in difficult circumstances" or so discredited as to make it necessary for the trial judge to withdraw the case from the jury and direct an acquittal. It was suggested that there was supporting evidence. 29. Now dealing slightly out of order with round five for it has relevance to the supporting evidence, it is necessary first to consider the background of the arrest of the 2nd appellant and his later appearance upon the parade on the 30th October. 30. The 1st appellant was arrested on the 19th October in circumstances which do not concern us. It is accepted that a day or so later the flat in which he lived and, more importantly, which he shared with the 2nd appellant and his child, was searched. Stolen property was found in it. 31. The 2nd appellant was arrested on the 29th October at his place of work and there was evidence that the arrest was initially because of his apparent connection with the stolen property found. It was made clear in the course of the trial that he was absolved from any offence in connection with that property. But he was placed upon the identification parade. 32. It is in this context that the trial judge, having in mind that passage of Turnbull(1) at page 230 which makes reference to "odd coincidences" which can, if unexplained, be supporting evidence, said:
33. Mr. Hoo attacks this passage on the basis that the evidence which I have recited a little earlier is the explanation of the "odd coincidence" and that it was wrong of the trial judge to direct the jury that it had not been explained. 34. But that coincidence is not, and we accept Mr. Duckett's submission on this, the fact of his appearance on the parade which is explained, but the fact of the girl's identification of the two men in the circumstances described which was not. 35. The jury were, in our view, properly directed on this point and the matter was left to them for their resolution. We would accept however that this aspect has doubtful probative value - probative, that is, in the sense of supporting evidence in the light of all the circumstances surrounding it. It was however a matter for the jury. 36. Generally and this, we think, to be the ground of greatest substance, the identification warning is attacked. It must be born in mind, however, that the guide in set out in the oft quoted Turnbull(1) have not been laid down as laws immutable as the laws of the Medes and the Persians. The report itself dealt with three appeals in all of which the question of identity had arisen. These were the appeals of Turnbull and his co-accused, of Roberts and of Whitby. 37. As to Turnbull his identification was of the "fleeting glimpse" variety and counsel for the Crown accepted that it was not good enough though the witness was an honest one. He indicated that if there had been no other supporting evidence he would not have been disposed to argue that Turnbull's conviction could stand. There was however such supporting evidence. Turnbull's appeal was dismissed. 38. As to Roberts the case on appeal was that the witness did not know Roberts before the incident, that the incident, an attack, was over in a few moments, that the place of it was dark, that Roberts' conduct after he had been accused was consistent with the honesty of his denial, that another witness was unable to identify him and, finally, that there were discrepancies and contradic-tions in the descriptions of the assailant given by the identifying witnesses. 39. Of this the court said at page 236:
40. The Court of Appeal felt the verdict was unsafe and unsatisfactory and the appeal of Roberts was allowed. 41. As to Whitby the Crown had "grave doubts" about the justice of his conviction. The Court of Appeal felt that the trial judge had given an inadequate warning on identification and had not assisted the jury on its quality. The court thought the quality of the identifica-tion to be "meagre in the extreme". One identifying witness had made up his mind before going on the parade, another had but a rear view of the appellant and the other had given a description, prior to the parade, which in no way applied to Whitby. The trial judge had referred to evidence as "supporting" which was not and had made an unfortunate comment on the evidence of a defence witness. 42. Whitby's appeal was allowed - and it was the case of Whitby which led to the convening of the full court of five to consider generally problems which had arisen relating to identification evidence and which, in turn, resulted in the judgment setting out the guidelines. 43. We would respectfully adopt that which was said by another Division of this Court in CHAN Kwong-wah and others v. The Queen(2) as to Turnbull 1 laying down guidelines and only that. It was there said:
44. Taking this as the test the sole general question remaining is: did the trial judge here observe it. 45. At an early stake in the summing-up the main issue in the case - identification - was brought to the attention of the jury in these words :
46. We would accept that, by itself, this direction would be inadequate. But it was not loft by itself. The jury were properly directed on the circumstances of the incident, the opportunity afforded the girl to see her molesters, the lighting conditions, the period of time that the incident took and that the girl had not seen the men before. The period between her sight of them and her identification to the police was also brought to the attention of the jury as were the discrepancies in her evidence and the explanations given for them. Further, and in particular, they were directed upon the conflict between the evidence of the girl and that of Chief Inspector Sit. All this in detail. 47. They were warned that they must examine the evidence of the girl "with the utmost care". They were not however warned explicitly, as they should have been, of the possibility of an honest mistake by an apparently truthful witness. This is the basic reason for the warning as to caution when considering identification evidence. All else is matter flowing from that basic reason. 48. We think, in all the circumstances of this case, that this was a fatal flaw. Here was a case complicated, necessarily so, by the need to give a corroboration warning in respect of the sexual aspect of the incident. In giving that warning - and for myself I have been in some doubt as to the necessity for a full corroboration warning in a mixed case of robbery and rape feeling that it may cause confusion - the trial judge emphasized the necessity for
and he went on:
Again the emphasis is on "truth" - but nowhere can be found the essential warning that a convinced witness may be convincing while at the same time honestly mistaken. 49. With respect to the trial judge we feel that this made it all the more essential that, faced with what I might term a two warning situation, the jury should be instructed in clear terms on the reasons for the identifica-tion warning. We appreciate that the emphasis at trial as on an incorrect identification not on an honest but mistaken one. But given the discrepancies, inconsistencies and the direct conflict between Chief Inspector Sit and the girl, this was an issue of which the jury should have been apprised. In its absence in the circumstances here they could have been misled. 50. For these reasons we think the convictions of both the 1st and the 2nd appellants - for the point covers both - to be unsafe and unsatisfactory and that they must be quashed. (1) (1977) 1 Q.B. 224 (1) (1977) 1 Q.B. 224 (1) (1977) 1 Q.B. 224 (1) (1977) 1 Q.B. 224 (2) Criminal Appeal No. 486 of 1981 Representation: A.W. Sedgwick, Esq. assigned by D.L.A. for the 1st Appellant. A. Hoo, Esq. instructed by Yung, Yu, Yuen & Co. for the 2nd Appellant. A.P. Duckett, Esq. for Crown/Respondent. |