Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 19 of 2006

Williams v. Regina (CL-AP 19 of 2006) [2006] TCACA 2 (19 June 2006);

Law report citations
Media neutral citation
[2006] TCACA 2
Coram
Zacca, P
Mottley, JA
Langrin, JA

IN THE COURT OF APPEAL OF TURKS AND CAICOS ISLAND

CL-AP 19/06

BETWEEN:

CARLSON WILLIAMS                                                                                       APPELLANT

AND

REGINA                                                                                                           RESPONDENT

BEFORE:

The Rt. Hon Edward Zacca               -President

The Hon Elliott D. Mottley  -Justice of Appeal

The Hon Ransford Langrin -Justice of Appeal

Noel Skepping for Appellant

Marlon Green for Respondent

29,30 January:                August 2007

1.             In the early morning of 22 February 2006, approximately 3.45am, a male intruder broke and entered the home of Andrew and Joan Garneau. At the time both of the Garneaus were in bed watching the Winter Olympics which was being broadcast on television. Previously, they were asleep when the barking of their dog caused them to awake. Joan Garneau left the house and tried to prevent the dog from continuously barking. On returning to bed, she and her husband then started to watch television. Within a few minutes, they saw the intruder in the doorway of the bedroom with a machete in his hand _ which was raised. The intruder grabbed Joan Garneau by her hair and started to beat her with the machete. He then dragged her out of the bedroom into the kitchen. He continued to beat Joan Garneau about her head and body. This beating continued for about 10 or 15 minutes during which she stated that she was in ‘shock’. Her husband had rushed from the bedroom and tried to contact the police by calling 911. However he was unable to do so. Nonetheless, he said, in a loud voice, as if speaking to the police, that an intruder had broken into the house and he requested their assistance. The intruder ordered the husband to give him money, failing which, he said that he was going to kill Joan Garneau. Andrew Garneau rushed at the intruder who made a lash at him with the machete cutting him over the eyebrow. The blood which flowed from the cut prevented Andrew Garneau from seeing as a result of which he started to shout for help. The intruder, who was still standing over the wife and still beating her with the machete again, stated that he was going to kill her if he wasn’t given money. Andrew Gameau then grabbed a chair and hurled it at the intruder, where upon the intruder struck him on his back with the machete cutting him twice. Andrew Garneau grabbed a machete from the side of the bed and shouted that he was armed and he was coming after the intruder. The intruder quickly released Joan Garneau and ran through the back door into a courtyard and thereby made good his escape. Shortly after, the intruder returned to the premises and took away a bicycle which belonged to Andrew Garneau. Andrew Garneau was subsequently treated at the hospital for his injuries.

2.             Joan Garneau stated that the intruder was wearing a bandana, folded in a triangle, like a cowboy and tied behind his head. This bandana coveted his nose, mouth and the lower part of his face. His eyes and hair were exposed. His hair was stated to be short about half an inch long and “greased down". Joan Garneau said that the intruder was wearing a red tee-shirt and a dark pants. She was only able to “get to look at the person who attacked” for ten seconds. This opportunity occurred when the intruder first appeared at the doorway of the bedroom. At that time, he was about 4 feet from her. A light was burning in the bedroom and the television was on. While the intruder was beating her she was unable to see his face. Joan Garneau was able to give a description to the police. In cross-examination she stated:

“I gave the description that he was about five foot six, he had greased black hair that was not long, that was probably about a half inch long, that he was medium build dark complexion and that she recognized his voice.”

Andrew Garneau was unable to see his entire face but could only see part of his face.

3.             After speaking to Andrew Garneau and Joan Garneau at the Grand Turk Hospital, detective Sgt. James Callendar, at about 5.10am, went to the home of the appellant He was accompanied by police constable Ingram. The police knocked at the house for several minutes but no one answered. On the day following the incident, the appellant was arrested and taken to the Grand Turk Police Station. When told of the report that Andrew Garneau and Joan Garneau had made, the appellant denied any knowledge of the incident He said that he returned home after midnight and did not leave home until the police came for him on the next morning.

4.             In his evidence, the appellant stated that, on the 22 February 2006 at about 8pm, he met one of his brothers, Chad on the street and they took a ride by the clock. They remained there for several hours during which time they consumed alcohol. In addition to his brother, a person by the name of Darryl Clarke was also there. On returning to his home, the appellant fell asleep on a sofa. He denied going to the house of Andrew Garneau and Joan Garneau and causing Andrew Garneau grievous bodily harm. He also denied assaulting Joan Garneau occasioning her bodily harm. He also denied stealing the bicycle.

5.             The appellant was convicted of aggravated burglary, stealing the bicycle, and assaulting Joan Garneau occasioning her actual bodily harm. On the aggravated burglary, the appellant was sentenced to life imprisonment; for stealing the bicycle he was sentenced to one year imprisonment and for the assault occasioning actual bodily harm he was sentenced to 2 years imprisonment. These sentences of one and two years were to run concurrently. It is from these convictions that the appellant has appealed.

APPEAL

6.             At the trial the central, if not the sole, issue was the identification of the intruder. Although a number of grounds were filed and argued, as stated the central issue was identification, and, in view of the decision reached on the issue of identification, our reasons relate solely to that issue. In so doing, we mean no disrespect to counsel for the appellant No identification parade was conducted by the police which would have afforded Joan Garneau an opportunity to see if she could identify the person who had entered her home. Counsel for the prosecution sought, and obtained from the judge, permission to conduct what is known as a “dock identification” on the basis that the appellant had been known to her and as such there was no need for an identification parade. In view of the decision reached by this Court, and the reason for that decision, we do not consider it necessary to comment on the correctness of that decision.

7.             It is necessary to examine the evidence given on the issue of identification. Joan Garneau saw the man standing at the bedroom door with a bandana on his face. While he was standing there, Joan Garneau said she was able to see part of his face for 10 seconds. The bandana was tied in the shape of a triangle and covered his nose, mouth, and his lower face. However, his eyes forehead and hair were not covered. She stated that his hair was short, about half on inch and “greased down”. As stated earlier, she was permitted by the judge to identify the appellant while in the dock, not having been previously afforded an opportunity to identify him in an identification parade. Joan Garneau gave a description to the police in which she said the intruder “was about five foot six, medium build and a dark complexion”. She described his hair as not being long about half an inch and “greased back”. She indicated that she had recognized his voice as she previously had a conversation with him. However she was only able to see part of the person’s face for ten seconds and this was while the person was standing in the doorway. After that, she stated that she was unable to see his face as the intruder was dragging her by her hair.

8. Joan Garneau said that she had seen the intruder several times before the night of the attack. She had seen him walking along the Sandra’s pond which is behind his home which was stated to be on Hospital Road. She saw him at his home on three occasions. She had seen him about a year before the date on which she gave evidence by the Bohio Hotel. While it was dark on that occasion, she recognized him because she had seen him before. She indicated that the light was dim and the appellant was approximately a hundred feet away. On that occasion, she saw his face for “a very short time”. By a short time, she indicated that she meant that she saw “him and then I turned away and went about my business”. She saw him on another occasion while she was riding pass a store where he was.

She could not remember the date when this occurred but it was during the day. On that occasion the appellant was some fifty feet away. She was only able to see that person "side on". She described her observation on that occasion as being “brief''. She also saw him by Sandra’s Pond. On that occasion she stated the appellant was walking along the road when she drove pass him. The vehicle was thirty feet away from the appellant. She described the length of time of her observation on this occasion as “passing’ ’. It must be noted that Joan Garneau was not acquainted with the appellant. It was significant that no evidence was led to show why she would have observed him on the occasions that’ she alleged _having_regard that she was not acquainted with him. Certainly she did not know him by name. Andrew Garneau was unable to identify the intruder.

9.             In his summation the Chief Justice told the jury:

“The case against the accused depends on the correctness of the evidence provided by the prosecution. If you are satisfied that a witness was seeking to tell you the truth about what he or she saw - and here there has not been any attempt to suggest that Mr. and Mrs. Garneau were not seeking to do that — you will still have to exercise a special caution in deciding if that evidence is reliable, because experience has shown that if you know someone you may still be mistaken as to what he or she saw and can even wrongly identify a close friend or relative. So, you examine carefully the circumstances in which the observations were made: a what distances; for how long; in what lighting; whether anything was in the way; whether the witness knew the person that they were seeing and, if so, how well.

Here, Mrs. Garneau has said that she observed a man on six occasions, three of them when he was in the yard at the house in Hospital Road, which house she described. The officer who arrested the defendant gave a similar description of the house where the defendant was living at the time he arrested him. She is saying, in effect, that the man she saw on those six occasions was the same man that that those observations enabled her to recognize him when she saw him again. You have to be satisfied that she is right about that point Again, you must consider all the circumstances in which those observations were made: how long; at what distance; in what light and so on. Then you have to be satisfied that on those occasions when she saw that man, a certain man, that it was the defendant that she saw, from her description of what she saw, the fact that some of the observations were of a man in his patents’ yard.

Even if you are satisfied on that, you then have to consider what her ability was to observe the man who came to her house that night Again, you will have regard to all the circumstances in which the observations were made: for how long; in what light; to what effect the observation was inhibited, for example by a bandana across the face and so on. Having considered all those factors, you have to be satisfied that she was able to make an identification from what she saw. If so, you will have to be satisfied that she correctly recognized the man in her house as the man that she had seen on those previous occasions and that that man was the defendant”

10.          The Chief Justice returned to the issue of identification when he was drawing the jury’s attention to the evidence that was given. He reminded the jury that Joan Garneau and her husband were lying in bed watching television when “a person appeared at the doorway of her bedroom with a machete raised in his band”. His Lordship indicated to the jury that that was Joan Garneau’s opportunity to observe the appellant as “she had not gone into a state of shock”. The appellant had not yet seized her hair and had not yet dragged her from her bed. The Chief Justice pointed out to the jury that when the appellant was standing at the doorway he was four feet away from her. The Chief Justice continued:

“What she said she saw was a man who had a bandana over his face so she could not sec his face but she saw his eyes and hair. He was five foot six or thereabouts, he had greased-back hair half-an-inch long and a dark complexion and was of medium build. There was a light on in the bedroom, the TV was on and also the security lights outside were on, which lit up, so it was light in the bedroom by which she was able to conduct her observations. She said she turned her light on before going off to quieten the dog.

She said she was able to recognize that he had a red tee-shirt on and dark pants and (several inaudible words) hair, greased-down and above half-an-inch long. You will have to consider that, which was not challenged at that time that his hair (several inaudible words).”

11.          The Chief Justice told the jury that if they were satisfied that the witness was seeking to tell them the truth about what that had seen, they still had to proceed with caution. This statement misrepresented the function of the jury. It was no part of the jury’s function to determine whether “a witness was seeking to tell" the truth. It was their duty to determine whether the witnesses were in fact speaking the truth. It was no part of their duty to determine whether the witnesses were seeking to speak the truth. A witness may indeed be seeking to tell the truth but may nonetheless be mistaken as to the identity of the intruder. The issue for the determination of jury was not, whether they were seeking to tell the truth about the identity of the intruder but whether on the evidence they were satisfied beyond reasonable that Joan Garneau was able to identify the intruder. The witness may well have been seeking to speak the truth. But such a direction was capable of misleading the jury as to their proper duty. Having regard to the nature of the evidence a careful direction on the issue of identification was required - a full Turnbull direction was needed. In Regina v. Turnbull [1977] 1QB 224 Lord Widgery in delivering the judgment of a full Court of Appeal in England said:

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Recognition may be more reliable then identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”

12.          Several criticisms have been made of the summation by the Chief Justice. Before dealing with those criticisms, we consider it appropriate to point out the advice given to judges by Ibrahim JA in the Court of Appeal of Trinidad and Tobago in Fuller v. The State (1995) 52 WIR 424 at p.433 which was recently approved by the Privy Council in the judgment of Lord Carswell in Langford (Leroy) and Freeman (Mwanga) v The State of Dominica (2005) 66 WIR 194. Lord Carswell stated at p.203:

“Without seeking to specify a minimum standard, their lordships commend to judges the sound advice given by Ibrahim JA in the Court of Appeal of Trinidad and Tobago in Puller v The State (1995) 52 WIR 424 at 433:

“We are concerned about the repeated failures of trial judges to instruct juries properly on the Turnbull principles when they deal with the issue of identification. Great care should be taken in identifying to the jury all the relevant criteria. Each factor or question should be separately identified and, when a factor is identified all the evidence in relation thereto should be drawn to the jury’s attention to enable them not only to understand the evidence properly but also to make a true and proper determination of the issues in question. This must be done before the trial judge goes on to deal with another factor. It is not sufficient merely to read to them the factors set out in Turnbull’s case and at a later time to read to them the evidence of the witnesses. That is not a proper summing-up. The jury have heard all the evidence in the case when the witnesses testified. It will not assist them if the evidence is merely repeated to them. What they require from the judge in the final round is his assistance in identifying, applying and assessing the evidence in relation to each direction of law what the trial judge is required to give to them and also in relation to the issues that arise for their determination.”

13.          In Garnett Edwards v The Queen, Privy Council Lord Carswell, reminded judges that:

“It was incumbent upon the judge however, to give careful directions to the jury, setting out fully the strengths and weaknesses of the identification, linking the facts to the principles of law rather than merely rehearsing these principles.”

14.          The Chief Justice did tell the jury that they were required to “examine carefully the circumstances in which the observations were made; at what distance; for how long; in what light; whether anything was in the way whether the witness knew the person that they were seeing and, if so, how well. Having identified these factors, the Chief Justice ought to have directed the jury’s attention to the evidence in support of each factor. He did not assist the jury by “identifying, applying and assessing the evidence in relation” to identification of the intruder. As stated earlier, the Chief Justice warned the jury that even if they were satisfied that Joan Garneau and Andrew Garneau were seeking to tell the truth they still had to exercise special caution in deciding if the evidence was reliable because experience had shown that mistakes are made when a person thinks that he has recognized a close friend or relative. The Chief Justice informed the jury that they had to examine carefully the circumstances under which Joan Garneau had identified the intruder. He told them that they had to consider at what distance, for how long, in what light, whether there was any obstruction, whether the person was known to the witness and if so how long. He did not assist the jury in assessing these elements by reminding them at this stage what was the evidence they ought to consider in support of each factor he had pointed out to them.

15.          The Chief Justice however did not go on to separately identify the strength and weaknesses of the evidence of the prosecution and draw it to the jury’s attention, so as to enable them to properly assess the issue of identification and to make a proper determination. In failing to do this, the Chief Justice did not give the jury the full Turnbull warning as required having regard to the nature of the evidence. In directing the jury to examine closely the circumstances under which the identification was made, the Chief Justice ought to have told the jury that they had to consider the distance between the intruder and the witness. He should have drawn to the jury’s attention the evidence of Joan Garneau. He ought to have pointed out to the jury that when Joan Garneau said that she saw the intruder when he appeared in the doorway of the bedroom, the intruder was about four feet away. The Chief Justice was required to point out to the jury that Joan Garneau was only able to observe the intruder for 10 seconds. She was unable to identify him later because he was holding her by her hair and dragging het. It was incumbent on the Chief Justice to point out to the jury that when Joan Garneau observed him, she was unable to see his nose, mouth and lower part of his face as it was covered by a bandana. He should have reminded the jury that Joan Garneau could only say that his hair was half an inch and “greased down”. The Chief Justice ought to have pointed out to the jury that, when she was asked by counsel for the appellant whether she agreed that she was unable to see the face of the person who attacked her, she responded that she could not see his face completely. In these circumstances it ought to have been brought to the attention of the jury that they had to decide whether a witness could properly identify the intruder as the appellant. She went on to point out that she was unable to see his face because the intruder was wearing a bandana on his face. The Chief Justice was required to point out that Joan Garneau also agreed with counsel for the appellant that she could only see his eyes and hair and this was for 10 seconds. These were all weaknesses which the judge was required to bring to the attention ' of the jury. The Chief Justice ought to have reminded the jury that when the intruder appeared at the doorway the light in the bedroom was on together with the television. The Chief Justice reminded the jury that Joan Garneau had “observed a man on six occasions, three of them when she was in the yard at the house in Hospital Road”. He told the jury that Joan Garneau was saying that the man she saw on six occasions was the intruder and that she was able to recognize him when she saw him. He did not remind the jury of the circumstances under which three of those observations had taken place. He did not point out to the jury that on the occasion when she said she saw him at Bohio, a hotel, it was dark and the person was at a distance of one hundred feet away and she was only able to see him for “a very short time”. On the second occasion she alleged that she saw him she was passing on her bicycle and was fifty feet away and was only able to see the person “side on for a brief period of time”. On the third occasion when she alleged that she saw the appellant it was by Sandra Pond. She was passing in a vehicle during the day and the person she alleged that she saw was 30 feet away. The Chief Justice did not point to the jury that no special reason was given why Joan Garneau should have observed the appellant on those occasions.

16.          The Chief Justice read to the jury the factors set out in Turnbull and at a later stage he dealt with the evidence. In so doing the Chief Justice did not give the jury the assistance which he is required to do having regard to the principle to set out in Turnbull (above). The jury were deprived of the assistance which Turnbull says is necessary when the prosecution case depended wholly on the correctness of the identification of the appellant. The Chief Justice made no attempt to identify the quality of the evidence concerning the identity of the intruder or the strength or weakness of the prosecution evidence. The approach adopted by the Chief Justice was similar to the approach which Ibrahim J.A. stated in Fuller’s case should not be adopted by judges in their summation to the jury when identification of the defendant is an issue for their determination.

17.          The case for the prosecution was based solely on the identification of the appellant, by Joan Garneau for the first time when he was sitting in the dock. It was their case that the appellant had been previously known to Joan Garneau and in those circumstances, she was purporting to recognizing someone who was known to her previously. As stated in Turbull, the Chief Justice therefore ought to have reminded the jury that:

“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

18.          In Langford and Freeman (supra) the Privy Council stated:

“24. One other factor of general importance requires mention. Where, as in the present case, the identification depends upon the recognition by the witness of a person or persons previously known to him, the jury should be reminded that there is room for mistake in such cases as well as in those which turn on the identification of a person hitherto unknown to the identifying witness who is recollected by discription. That risk was adverted to by Lord Lane CJ in the Court of Appeal in R v Bendy [1991] Crim LR 620 and underlined by the Board in Pop v R [2003] UKPC 40, for an appropriate Turnbull direction is not diminished”

19.          The Chief Justice told the jury that “experience had shown that if you know someone you may still be mistaken as to what he or she saw and can even wrongly identify a close friend or relative”. It was not sufficient for the Chief Justice to tell the jury that experience has shown that mistakes were often made in the purported identification of witness. His Lordship ought to have gone and indicated to the jury the reasons for this statement He should have told the jury that experience in the courts had shown that erroneous identification had been made by apparently honest witnesses. In addition the Chief Justice should have directed the jury that an honest and convincing witness may never the less be mistaken. In our view, the Chief Justice did not sufficiently emphasize that the reason for the danger of evidence of recognition and did not point out to the jury that an honest witness may yet be mistaken. He certainly did not stress that honesty was no guarantee against a false impression being sufficiently indelibly, imprinted on the mind of Joan Garneau as to convince her.

20.          This was made abundantly clear in Reid (Junior) v The Queen [1990] 1AC 363 where Lord Ackner adopted the observation of the Full Court of the Supreme Court of Victoria in Reg. v. Dickson [1983] 1VR 227. His Lordship said at p. 380:

“The Supreme Court was not satisfied that what the judge had said effectively alerted the jury to the danger that witnesses, whom they might regard at honest and convincing, might nevertheless be mistaken. The following observations of the court are particularly pertinent, at p. 231:

“It is difficult to convey to the jury the reality of particular dangers which exist in the evidence without drawing to the attention of the jury two things

“In cross-examination he said he could not remember whether he had put the little reading light on next to the bed. He said, “I know the person and it’s the same person that I saw in my house nine months earlier and that I did tell the police I didn’t know who the man was”. Again, you did not really hear anything about that, or anything about the observations or observation at any previous time. Again, you may think that what you really need to do it here is just concentrate on the observations of 22 February.”

Having brought this to the attention of the jury it was not sufficient to tell them that they may think that they should concentrate on the observation on 22 February. Put in this fashion the Chief Justice left it to the jury to decide for themselves whether they would consider what Andrew Garneau said about the identity of the intruder. The Chief Justice ought to have given the jury a strong direction that in the circumstances of the case they could not use the evidence to support any identification by Andrew Garneau. However because of the manner of the disposition of the case nothing turns on this failure.

27.          We were asked by the prosecution to apply the proviso. For the purpose of determining whether the proviso should be applied, it is necessary in the circumstances of this case to consider the whole of the prosecution evidence, in particular, the strength and weaknesses of the identification evidence. A judge is required to consider the quality of the evidence of identification at the close of the evidence. If he considers that the quality of the evidence is poor he is required to withdrawn the case from the jury. Lord Widgery said in Turnbull’s case at p. 229:

“When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation in very different The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.”

There was absolutely no evidence which was capable of supporting the evidence of identification made by Joan Garneau. In our view, the evidence of identification for ten seconds in the circumstances of this case ought to have been considered as fleeting glance. The witness was unable to see the whole of the intruder’s face, she was unable to see his nose, mouth or chin. She was only able to see his eyes and his hair. In her description to the police she said the intruder was five feet six inches tall, of medium build, dark complexion with “greased black hair” about half an inch long. In our opinion, the quality of the evidence of identification at the close of prosecutions case was poor. The identification by Joan Garneau was not supported by any other evidence. In our view it would be wrong to apply the proviso.

28.          Counsel for the Crown, further submitted that, in the event the Court concluded that there was a misdirection in relation to the identification of the intruder, a retrial should be ordered. The Court cannot accept this submission. The identification of a defendant accused of committing a crime is the paramount element of any criminal offence. It is absolutely essential that the Crown must prove the identity of the person whom they alleged, in the indictment, committed the crime. If this element is not proved the conviction must be set aside. In the circumstances of this case, it would be contrary to justice to afford the prosecution a second opportunity to prove the identity of the person whom they alleged, in the indictment, to have committed this offence. This goes to the very heart of fairness of criminal trials.

29.          It was for these reasons that we allowed the appeal and ordered that the conviction be quashed and the sentence set aside.

Zacca P

Mottley J.A

Langrin J A.