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Beng v The State [1977] PGLawRp 524; [1977] PNGLR 115 (2 May 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 115 - John Beng v The State�

[1977] PNGLR 115

SC112

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOHN BENG

V

THE STATE

Waigani

Prentice DCJ Williams Kearney JJ

2 March 1977

2 May 1977

CRIMINAL LAW - Evidence - Identification - Dangers to be borne in mind in accepting evidence of identification - Relevant matters for consideration.

EVIDENCE - Identification - Dangers to be borne in mind in accepting evidence of identification - Relevant matters for consideration.

CRIMINAL LAW - Appeal against conviction - Verdict �unsafe or unsatisfactory� - Reasonable doubt as to safeness or satisfactoriness required - Supreme Court Act 1975 s. 22(1)(a).

The appellant was convicted of unlawfully wounding a young woman, the identification of the appellant (who denied responsibility) by the young woman being the only real matter in issue on the trial. The appellant appealed therefrom under s. 4(2) of the Supreme Court Act 1975 in reliance upon s. 22(1) of the Act.

Section 22(1)(a) of the Supreme Court Act 1975 provides:

�Subject to subsection (2), on appeal against a conviction the Supreme Court shall allow the appeal if it thinks that (a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.

Held

N1>(1)����� On appeal against conviction pursuant to s. 22(1)(a) of the Supreme Court Act 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.

Stafford v. D.P.P., [1974] A.C. 878; referred to.

R. v. Sean Cooper (1969) 53 Cr. App. R. 82, Himson Mulas v. The Queen, [1969-70] P. & N.G.L.R. 82 at p. 86, Kampangio v. The Queen, [1969-70] P. & N.G.L.R. 218 at p. 223 and Regina v. Worobi Dese, [1974] P.N.G.L.R. 23 at p. 29 not followed.

N1>(2)����� In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.

R. v. Raymond Turnbull & Ors. (1976) 63 Cr. App. R. 132 followed,

The State v. John Beng [1976] P.N.G.L.R. 471 upheld.

N1>(3)����� Neither the evidence, nor the conduct of the trial, nor the directions which the trial judge gave to himself, raised a reasonable doubt as to the safeness or satisfactoriness of the verdict and the appeal should be dismissed.

Appeal

This was an appeal brought under s. 4(2) of the Supreme Court Act 1975, in reliance upon s. 22(1)(a) thereof, against a conviction of unlawful wounding. The appeal was concerned only with the question of identification of the appellant (accused) which was the major issue on the trial.

Counsel

WJ Andrew for the appellant

KB Egan for the State

Cur. adv. vult.

2 May 1977

PRENTICE DCJ WILLIAMS J: The appellant was on 14th October, 1976 convicted in the National Court of unlawfully wounding one Jenny Jee, a female bartender, in the Papua Hotel. That Miss Jee was in the late afternoon of 26th June, 1976 attacked by a man with a bottle is not in issue. The issue of identification of the woman�s assailant was hotly contested at the trial. This appeal is concerned only with the question of identification.

It is urged now that the conviction should be set aside as being unsafe and unsatisfactory for a number of reasons, all relating to the evidence of identification. The appeal is thus brought under s. 4(2) of the Supreme Court Act 1975, in reliance upon s. 22(1)(a) thereof; which states:

�Subject to subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that:

(a)����� the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory ...�

The sections were in their present form inserted in the Supreme Court (Full Court) Act 1968 of pre-Independence Papua New Guinea, when a Full Court was first instituted in the country in 1968. Section 4(2) appears to have been taken from a similar section introduced in the United Kingdom by the Criminal Appeal Act 1966 s. 4(1) (now s. 2(1) of the United Kingdom 1968 Act).

Appellant�s counsel urges that this Court should allow an appeal brought in this guise, if it entertains �a lurking doubt� as to the propriety of the trial verdict. The phrase �lurking doubt� is to be found expressed in Sean Cooper[cix]¹, a judgment of the Court of Appeal (Criminal Division) U.K., and in Stafford v. D.P.P.[cx]², a decision of the House of Lords. As we understand counsel�s submission, it is that if this Court has any �lurking doubt� about a significant feature of the evidence, that is equivalent to a demonstration of the unsafety and unsatisfactoriness of the verdict.

N1>In the United Kingdom under the original provisions of the Criminal Appeal Act of 1907 (s. 4(1)(2)) which allowed inquiry into unreasonableness and miscarriage of justice, it had been held that it was not sufficient merely to show a weak case or to raise some doubt in the minds of the members of the appeal court. Understandably, there was reluctance to allow virtually the conduct of a second hearing before a different tribunal.

N1>It was stated after some years of operation that the 1907 Act had resulted in the Court being �burdened with frivolous appeals� and that �ninety per cent of the applications are frivolous�. (Avory J. 15 Cr. App. R. 142). Nevertheless it was felt in the sixties in the United Kingdom that a wider ground of discretion in the court of appeal was necessary.

N1>In an early appeal under the new �unsafe or unsatisfactory� provision, the Court of Appeal (U.K.) was content, the situation having seen the acquittal of two of three charged together, to rule, without putting a gloss on the section, that �... in all the circumstances of the case it is, in our opinion, unsafe and unsatisfactory to allow the conviction ...� (George Smith[cxi]³).

N1>Sean Cooper[cxii]⁴�brought a new approach. That case was one in which evidence had been put before the jury that another man had admitted to the crime and had been told that he should not let the appellant take the blame on an incorrect identification. In discussing the new powers given it, the Court stated as to s. 2 of the 1968 Act (U.K.):

�... That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.�

We pause to say by way of commentary, and with the greatest respect, that it cannot readily be seen why the Lords Justice have supplanted for the plain words of the United Kingdom statute, a new formula of their own devising (purportedly by way of gloss). We would also comment that it is difficult for the �general feel of the case� to be acquired by an appeal court from the mere reading in cold type of a transcript of the original proceedings divorced from the undoubted advantage of observation of the demeanour of witnesses and the general atmosphere surrounding the trial.

The United Kingdom statute was further discussed in 1974, by the House of Lords in Stafford v. D.P.P.[cxiii]⁵. This case involved the tender of fresh evidence when the matter was referred back to the Court of Appeal by the Secretary for State; the question argued was whether the Court of Appeal should have considered what the possible approach of the jury to the new evidence would have been, rather than to have considered what its own approach to the appeal in the light of the new evidence was. Counsel for the appellant concerned himself with whether the fresh evidence might have raised a reasonable doubt in the jury�s mind. He does not seem to have adopted the �lurking doubt� test.

The speeches in the House of Lords reveal that Lord Pearson merely stated that the verdict of the jury was not unsafe or unsatisfactory; and agreed with Viscount Dilhorne. Viscount Dilhorne after citing the passage from Sean Cooper[cxiv]⁶�which we have set out above stated at p. 892:

�That this is the effect of s. 2(1)(a) is not to be doubted. The court has to decide whether the verdict was unsafe or unsatisfactory and no different question has to be decided when the court allows fresh evidence to be called.�

He had earlier said, after pointing out that the Court of Appeal�s powers under the 1966 Act were wider than under the original Act of 1907:

�The Act thus gives a wide power to the Court of Appeal and it would in my opinion, be wrong to place any fetter or restriction on its exercise. The Act does not require the Court, in making up its mind whether or not the verdict is unsafe or unsatisfactory, to apply any particular test ...� (at p. 891).

With respect, it might be thought that his Lordship�s utterance is equivocal. His Lordship made no reference himself to any question of �lurking doubt�, but many times spoke of the possible existence of reasonable doubt (emphasis ours) as the material factor. Towards the end of his speech, his Lordship reiterated that:

�At the end of the day it is for the House to say whether in the light of the further evidence the verdict was unsafe or unsatisfactory. On the evidence the jury heard it cannot be maintained, indeed it was not asserted, that it was unsafe or unsatisfactory ...�

Lord Diplock expressed agreement with Viscount Dilhorne and Lords Cross and Kilbrandon, stating:

�... I agree with them that the Statute under which this appeal is brought to this House requires each of us to ask himself the question: under all the circumstances of the case as it now stands in the light of the additional evidence, am I myself satisfied that the verdict of the jury was safe and satisfactory?�

Lord Cross of Chelsea made it clear that both in fresh evidence cases and �proviso� cases, where a question of doubt was raised it was a reasonable doubt that was to be considered (at pp. 907, 908).

Lord Kilbrandon stated at p. 912:

�... If it were necessary to expand the question which a member of the court, whose thoughts are in question, must put to himself, it may be �Have I a reasonable doubt, or perhaps even a lurking doubt, that this conviction may be unsafe or unsatisfactory?�.�

Apart from this reference, his Lordship seems to be concerning himself with the possible existence in his own mind of a �reasonable doubt�.

The �unsafe or unsatisfactory� provisions were applied in pre-Independence Papua New Guinea by the then Full Court in Himson Mulas v. The Queen[cxv]⁷. Mann C.J. noted the �explanation� of the comparable United Kingdom section in Sean Cooper[cxvi]⁸, without comment; but went on:

�There is a further illustration of the scope of the new jurisdiction in a newspaper cutting which was produced in Court. It is a report of two cases decided by the Court of Appeal in England, where the court felt �uneasiness� about the jury�s verdict in the light of the evidence called.�

Though each of the judges forming the majority took the view that the verdict was �unsatisfactory� � recourse does not seem to have been had to any �lurking doubt� principle or �feel of the case�, but to the misdirections which they found the trial judge to have given himself.

In Kampangio v. The Queen[cxvii]⁹, however, the majority judgment expressly applied the dictum of Widgery L.J. in Sean Cooper[cxviii]¹⁰, stating:

�In our judgment the absence of trial by jury in (Papua New Guinea) should not prevent this Court from applying the same test under (the Papua New Guinea) Ordinance ...�

The members of the majority found themselves left with �some lurking doubt�. This was on the basis that though it was open to the trial judge to have drawn an inference as to intent to do injury of a certain character, they themselves thought it unsafe to make such an inference.

In Regina v. Worobi Dese[cxix]¹¹�the Full Court in reaching the conclusion that a conviction was unsafe because certain questions had not been asked of the appellant and the judge had misdirected himself, cited the �lurking doubt� paragraph from Cooper�s case[cxx]¹²�and stated:

�The legislation under consideration by his Lordship and the law that we are required to apply correspond so closely that we could see no reason to attempt to distinguish R. v. Cooper.

For the reasons which we have given, we have rather more than lurking doubts; we have �a feel of the case� which makes us react unhappily to the ultimate result....�

The abovementioned decisions were taken in Papua New Guinea at a time when it was a �Territory� administered by the Australian Government, subject to Australian law and the system of precedent established in the hierarchy of courts existing at the time. Appeal lay by leave from the Full Court of the then Supreme Court, to the High Court of Australia. Decisions of the Court of Appeal (Criminal Division) U.K., had necessarily to be regarded as having highly persuasive, if not binding, effect in respect to construction of local legislation similar to that of the United Kingdom. Decisions of the pre-Independence Full Court of the Supreme Court of Papua New Guinea will no doubt continue to be regarded as highly persuasive by the National and Supreme Courts; but are not binding upon these courts (Constitution Sch. 2.12).

It is therefore open to this Court now to consider afresh the correct interpretation of the phrase (loosely referred to as �a ground of appeal�) now appearing in s. 22(1) of the Supreme Court Act 1975 of independent Papua New Guinea.

There has as yet been no submission made to this Court or to the National Court that the standard of proof in a criminal case should be either higher or lower than that required under the common law in England at Independence Day; viz. proof beyond a reasonable doubt. Nor does it at once appear that such a standard of proof is inapplicable or inappropriate to Papua New Guinea, or inconsistent with custom (Constitution Schedule 2.2). No suggestion has been made that the court should seek to formulate another standard of proof as a process of development of the underlying law. Accepting that �proof beyond reasonable doubt� is to continue to be the standard, one should not perhaps lose sight of the many strictures which courts of common law countries have passed against attempts to express alternatives to the phrase. The difficulties which can be opened up by such a recourse, during the charging of a jury for instance, have been commented upon succinctly by Dixon C.J. of the High Court of Australia in Dawson v. The Queen[cxxi]¹³�where his Honour said:

�... in my view it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions....�

To our minds, the introduction of reference to �lurking doubt� and �the general feel of the case as the court experiences it�, as the test of �unsafeness or unsatisfactoriness�, could have the effect of setting up an entirely new concept � that of proof beyond any doubt without regard to reasonableness of doubt. We consider such an introduction to be unwarranted and that it should be avoided.

A re-consideration of the evidence, a study of any further evidence, or of new factors such as advance of knowledge in a particular aspect, will no doubt from time to time give rise to doubt of a reasonable character as to the safeness or satisfactoriness of a verdict, such as calls for it to be set aside. To hold that the starting up of any sort of doubt or uneasy feeling could so justify, as the words of Sean Cooper[cxxii]¹⁴�suggest, would be to give, in our opinion, an inapt construction to s. 22(1). We consider the Sean Cooper[cxxiii]¹⁵�gloss should not be applied.

We proceed now to a consideration of whether the evidence given and the reasons for judgment of the trial judge herein (for this case does not involve the reception of further evidence or the consideration of other features extraneous to the actual evidence) establishes that the verdict was unsafe or unsatisfactory.

The appellant contends that this Court should exercise its powers under s. 22(1)(a) of the Supreme Court Act and set aside the conviction on the ground that, under all the circumstances of the case, the verdict was unsafe or unsatisfactory. It is said that the verdict was unsafe or unsatisfactory for three reasons, namely:

N2>(1)����� That Miss Jee�s evidence within itself was contradictory and unsatisfactory.

N2>(2)����� That it was even more unsatisfactory when considered in the light of the evidence of another prosecution witness, Mrs. McInnes.

N2>(3)����� That it was demonstrably more unsatisfactory when examined in the light of the conduct of another prosecution witness, Jack Paia, as disclosed by the evidence.

It is also said for the appellant that, whilst each of these matters taken individually may not lead to the conclusion that the verdict was unsafe or unsatisfactory, the aggregate effect of them is that such a conclusion should be reached by this Court. The proposition that the aggregate effect should be taken into account is supported by The Queen v. Ireland[cxxiv]¹⁶; Leary v. The Queen[cxxv]¹⁷.

N1>It has long been recognized that there are dangers inherent in eye-witness identification evidence. The Court was referred to a number of authorities, the latest of them being a decision of the House of Lords in Raymond Turnbull & Ors.[cxxvi]¹⁸. In that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the headnote to the report) were made:

�Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made ....

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. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor � i.e. a fleeting glance or a longer observation made in difficult conditions � 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.

The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.

...�

At pp. 139, 140 the following observations were made by the Court:

�Having regard to public disquiet about the possibility of miscarriages of justice in this class of case, some explanation of the jurisdiction of this Court may be opportune. That jurisdiction is statutory: we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to re-try cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility this Court will only interfere in three circumstances: first, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness but this is rare.�

A number of other cases were cited in argument. However, it seems to us that, as agreed by counsel for the appellant, the matter cannot be put higher, from the appellant�s point of view, than in accordance with the principles expounded in Turnbull[cxxvii]¹⁹.

N1>Turnbull[cxxviii]²⁰�was not cited to the learned trial judge for the apparent reason that the report in that case did not become available until subsequent to the trial of the present appellant. The learned trial judge based his decision upon R. v. Preston[cxxix]²¹. At pp. 476-477 of his judgment[cxxx]²²�he said:

�The only relevant matters of law relate to the dangers of identification evidence which are well-recognized in common law countries. In practice the judge is required to give the jury an appropriate warning. Counsel for the accused referred to R. v. Preston ([1961] V.R. 761), a decision of the Court of Criminal Appeal of Victoria which brings out very well the appropriate procedure in this type of case. Lowe J., giving the judgment of the Court observed that the warning �must depend upon the circumstances of the case before the court. There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the court� (at p. 762). Where the identification relied upon is that of a single witness it is proper that the jury should be informed that the identification �was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice�, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are �what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.� � at pp. 762-763. These considerations were applied in R. v. Wright (No. 2) ([1968] V.R. 174); R. v. Boardman ([1969] V.R. 151); Reg. v. Long ((1973) 57 Cr. App. R. 187); The Queen v. King ((1975) 12 S.A.S.R. 404); Leary v. The Queen ([1975] W.A.R. 133).�

It seems to us that the principles of law to which the learned trial judge directed his mind were substantially the same as propounded in Turnbull[cxxxi]²³.

N1>As we understood his argument, counsel for the appellant conceded that the trial judge had properly directed himself as to the relevant law, as to the dangers inherent in identification evidence and as to the fashion in which a tribunal must scrutinize it. He contends however, that his Honour misapplied the facts of the case to the law, and that the quality of the evidence was such that, had the trial been conducted before a judge and jury, the case should have been withdrawn from the jury.

N1>The evidence of Miss Jee, the victim, has been analysed very competently in aid of the submission that it is an unsafe and unsatisfactory basis of identification of her attacker; and further to suggest that his Honour should not have accepted her as an honest and accurate witness.

N1>It has been urged that whereas in chief and cross-examination in October Miss Jee stated that the assailant on his first visit to her bar on the day in question used one word only �apron�, and did not ask for the housekeeper; in her statements to the police in June she said the assailant had used the words �I want some apron� and asked for the housekeeper. Counsel urges that the earlier versions seem more in accord with the evidence of a Mrs. McInnes, another State witness. Again, that whereas she stated to the police that the assailant in his second visit to the bar twice used the phrase �mi laikim yu�; in evidence she insisted that he used the phrase only once. It is suggested her evidence should be scrutinized also because she did not relate to the police that her assailant had a speech defect by way of a stutter (which in court the accused demonstrated was indeed a problem with him). And it is pointed out that Miss Jee�s estimates as to time differ from those of other witnesses as does her version of words used at the identification parade from that of Inspector Hairai.

N1>We do not find ourselves impressed by the submission that Mrs. McInnes� evidence as to the possible identity of the assailant should undermine that of Miss Jee; because Mrs. McInnes� opportunity for observation was extremely limited and of a fleeting character � indeed it was of the kind that has called up the classical strictures on the subject.

N1>His Honour accepted the evidence of Miss Whiting which apparently establishes that another trainee chef (one Jack Paia) whom Mrs. McInnes thought to be if anything more like the man she saw in the bar in her fleeting glimpse than was the accused, was probably in the vicinity, had the opportunity for the assault, and was possibly in some aggressive state of mind. But we do not think that the possibilities raised by this evidence considered either alone or in conjunction with the other matters put, weakens the positive identification by Miss Jee so that we should come to the conclusion that the verdict was unsafe or unsatisfactory.

N1>His Honour�s judgment indicates that he was alert to the evidential discrepancies, considered them and regarded them as explicable in terms other than dishonesty or unreliability of Miss Jee as a witness generally. His Honour was of course familiar with the dissertation of Lord Wright on the assessment of truthfulness of witnesses in Powell & Wife v. Streatham Manor Nursing Home[cxxxii]²⁴; he had been a member of the pre-Independence Full Court which had relied upon it in deciding R. v. Holland[cxxxiii]²⁵. After observation of her demeanour and of the atmosphere of the trial, he assessed Miss Jee as honest and reliable. Even were this Court to set aside his Honour�s dismissal of discrepancies for that they were not of great significance, and to take the view that Miss Jee had possibly been inaccurate in regard to the minutiae of words spoken and in regard to the other matters mentioned; it is necessary for the Court to consider her evidence as that of a witness who is found to give otherwise an impression of honesty and reliability in the setting of the actual identification alleged. It seems far-fetched to suggest that the actual assailant was other than a member of the hotel staff. Miss Jee had seen the accused as an employee some time prior to the assault and knew him by sight. She had been told he was an employee chef. She had three views of the actual assailant on the day in question. It was not a passing or fleeting glance. He approached close to her on two of these occasions. He confronted her and hit her on the third, in conditions of lighting to which she was accustomed. He spoke to her on two of the occasions. The identification therefore is an exceptional one. In our opinion it was open to his Honour to have accepted Miss Jee�s identification of the accused as her assailant and thus to find the offence proved beyond reasonable doubt against the accused.

To our minds, neither the evidence nor the conduct of the trial, nor the directions which his Honour gave to himself, raise a reasonable doubt as to the safeness or satisfactoriness of the verdict. We would dismiss the appeal.

KEARNEY J: I respectfully concur in my brothers� opinion, which I have had the advantage of reading. I would add a word concerning the two general matters which arise in this appeal, the �unsafe or unsatisfactory� ground, and the question of identification evidence.

Historically, the two are intertwined. As is well known the first court of criminal appeal in England was set up in 1907 following agitation caused by the wrongful conviction of Adolf Beck following repeated mistaken identification by eye-witnesses. During the Parliamentary debates on the Criminal Appeal Bill 1907, which set up the Court, the test presently enshrined in s. 22(1)(a) of our Supreme Court Act 1975 was suggested; the Government of the day rejected it on the basis that the words were too loose and obscure, and preferred the test that the verdict of the jury be �unreasonable or cannot be supported having regard to the evidence�. As my brothers have pointed out, the �unsafe or unsatisfactory� test was substituted in England in 1966, and it is interesting to note that this followed upon the recommendations of the Donovan Committee, which believed that the 1907 test was defective, a defect it proceeded to illustrate by reference to modern convictions based on mistaken identity.

As to the application of the �unsafe or unsatisfactory� test, it is clear I think that the Court of Appeal had no intention of setting up any new standard of proof, when referring to �lurking doubt�. The �lurking� does not refer to the quality or degree of doubt, but to the fact that it may not be manifest in a particular aspect of the case, but only �under all the circumstances�, when various matters may be aggregated. The doubt must be of a reasonable character, as my brothers say; a mere insubstantial or fanciful doubt will not suffice.

I think that the question is clearly a subjective one for this Court, but it is one in which, from the nature of the trial and appeal process, the views of the trial judge must be accorded great weight, when issues turn upon the credibility of the witnesses who testified before him; on such questions, I think, an appellant must show that the rejection of testimony flowed from some fundamental misconception of, or failure to take properly into account, the evidence as a whole.

As to the question of eye-witness misidentification, there can be little doubt that it is a fruitful source of miscarriage of justice particularly before juries, which tend to place excessive weight upon identification evidence. In this respect, at least, we are favoured in our trial process by the healthier scepticism of a judge. It is obvious that recognition is not the same as identification, although the weight to be given to evidence of recognition depends upon the length and degree of prior acquaintance. My brothers have analysed the evidence in this respect, and I agree with their conclusions.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: W. J. Andrew, Acting Public Solicitor

Solicitor for the respondent: K. B. Egan, Public Prosecutor