Langford & Anor v The State (Dominica) [2005] UKPC 20 (11 May 2005)

ADVANCE COPY

	Privy Council Appeal No. 42 of 2004

(1) Leroy Langford and
(2) Mwanga Freeman	Appellants
	v.
The State 	Respondent

	FROM

THE COURT OF APPEAL OF DOMINICA
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	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 11th May 2005
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	Present at the hearing:-
			Lord Bingham of Cornhill
Lord Hutton
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
		       [Delivered by Lord Carswell]
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1.	On 28 October 1998 at or shortly after 11 pm Ossie Osmond Charles was walking along Cork Street, a main thoroughfare of Roseau in Dominica.  He was set upon by three men, who beat and kicked him with such violence that he sustained fatal injuries.  He was taken to hospital, where resuscitation attempts were unsuccessful and he was pronounced dead at about 11.20 pm.

2.	The appellants were arrested and charged with Charles’ murder.  They were tried before Cenac J and a jury and on 28 June 2000 the jury returned a verdict of guilty against each.  The appellants were each sentenced to death by hanging.  They both appealed to the Court of Appeal against conviction and sentence.  On 5 June 2001 the Court of Appeal by a majority (Matthew JA and d’Auvergne JA (Ag), Redhead JA dissenting) dismissed the appeals against conviction.  They unanimously allowed the appeals against sentence, set aside the mandatory death sentences and referred the case back to the trial judge for re-sentencing.  Langford was subsequently sentenced to ten years’ imprisonment, but Freeman has not been re-sentenced.  Both appellants appealed against the decision of the Court of Appeal to the Judicial Committee of the Privy Council, by special leave granted on 12 July 2004.

3.	A little earlier that evening, at or shortly after 10.20 pm, Freeman entered the Club de Cave on Kennedy Avenue, Roseau and became involved in a fight with one Laurie Jno Baptiste.  The proprietor of the bar Edgar Berridge broke up the fight by seizing hold of Freeman, while Ossie Charles at Berridge’s request held on to Baptiste.  Freeman then left the bar, being observed as he emerged at about 10.50 pm by Police Constable Drigo.  A couple of minutes later he was seen by PC Drigo running along the Dame Eugenia Charles Boulevard.  There is no evidence to suggest that Freeman was at this time in the company of Langford or any other person.

4.	The main eye witness to the killing of Ossie Charles was Joseph Alexander, who was driving his car along Cork Street in a westerly direction as the incident commenced.  He said that as he drove along the street, at a time which he put at about 11.30 pm, he saw three men running up Cork Street in an easterly direction pursuing Charles.  They seized him and started beating him with stones which they held in their hands.  Alexander stopped about the front of the Eugenia Charles building, at the back of a Suzuki minibus parked at the mouth of Cross Lane, a small street or alley which runs from the east side of the Eugenia Charles building to Field’s Lane.  The three assailants and Charles were then on the left side of the road, “under Miss Charles’ office.”  Alexander reversed his car to a point by the house of the former President, Mr Seignoret.  The distance between that point and the fight was estimated by him at 150 feet and by a police witness at 120 feet.

5.	There he stayed in his car observing the fight, which lasted for a period which he put at half an hour.  Alexander said that he could hear Charles asking his assailants why they were hitting him.  He remained on his feet until they knocked him to the ground and, in Alexander’s words, kicked him under the minibus.  There they left him and ran up Cork Street in the direction of Alexander’s vehicle. One of them, whom he named as Langford, then came back to where Charles was lying and, as Alexander put it in his evidence, “pulled out a knife and passed the knife on his back”. He could not, however, see if there was any contact between the knife and Charles’ person.  Alexander drove down to where Charles lay and spoke to him, receiving a reply.  He went to a telephone and contacted the police, who summoned an ambulance. Police Constables Drigo and Ferdinand, who were on patrol, arrived at the scene shortly before the arrival of the ambulance, and Pc Drigo gave the time of their arrival as being at or shortly after 11.15 pm.

6.	Joseph Alexander stated in evidence that he identified two of the assailants as the appellants.  He claimed that he saw them clearly and was able to recognise them because he was close to them.  He said that he had known Freeman for about three years, though he agreed that he had told the magistrate that he had known him for about a year or so.  He stated that he and Langford had gone to school together and that he saw him often thereafter.  The witness was not asked at what point he was situated when he made the identification of the appellants, but said that he was able to recognise each of them because he was close to them.

7.	Alexander accepted in his evidence that he told Inspector Laudat that all three assailants were “rasta guys”, that is, that they had rasta dreadlocks. He gave several descriptions of the clothing worn by these men, and it was brought out in evidence that the descriptions varied between his police statement, his evidence to the magistrate and his testimony at trial, and that they did not coincide with those given by the other eye-witness Roselind Bridet. It is not necessary for the purposes of this judgment to set out the details of the variations, it being sufficient to note that they were quite considerable.

8.	Roselyn Bridet stated in her evidence that she then lived in Fields Lane.  Shortly before 11 pm on 28 October 1998 she was returning home from a walk.  When she was in Cross Lane, in front of Julia’s Boutique, she saw three young men running from Fields Lane into Cross Lane, who must have passed close to her in Cross Lane.  When they got to Cork Street they engaged in a fight with another person, who had been walking up Cork Street.  They beat him for about ten minutes, then ran up Cork Street, leaving him on the ground.  Ms Bridet, who said that she had stood watching the fight from a block away, went to the place where the victim was lying, where she recognised him, with the aid of light from a flashlight, as Ossie Charles, whom she had known all her life.

9.	Ms Bridet said that she did not recognise any of the three men, though she knew Langford.  She was able to describe their clothing and stated that two of the men had locks, one shorter than the other, and the third had a flat cut.  She said that she did not see their faces, as their backs were turned to her.  She demonstrated in court the distance from which she had seen the men when they were closest to her, which presumably was when they passed her in Cross Lane.  She said that there were no street lights around where she stopped and saw the incident.  Her inability to recognise either Langford or Ossie Charles must, however, raise questions about the sufficiency of the light at the scene of the fight.

10.	Inspector Michael Laudat deposed that there were three street lights in the vicinity.  He described the first as being “in the angle of King’s Lane and Cork Street in the vicinity of former President Sir Clarence Seignoret’s home”.  The second was “in the angle of Old Street and Cork Street”, but this cannot be seen in any of the photographs, possibly because it was a little distance into Old Street.  This appears to have been the light which he later described as being by the Tobacco Factory and lighting Cork Street.  The third was in Old Street in the vicinity of Barclay’s Bank, but the Board had no evidence of the location of the bank premises.  Alexander stated that light was coming from “under Miss Charles’ office”, but Police Constable Shillingford, who took the photographs, agreed in cross-examination that in photograph number 6 there was no light under the building and Inspector Laudat said on the three occasions that he visited the scene there were no lights in the area of Miss Charles’ building.  There was an illuminated sign outside the drug store immediately opposite that building which was the source of some light.  Inspector Laudat also said that a light inside the PHIA store was reflecting on Cork Street. Alexander said that after he reversed his vehicle lights were on full beam.  Ms Bridet said that she could see how the men were dressed from “the vehicle lights and lights from the business places”, referring in particular to the drug store.

11.	At an early stage Alexander identified Langford to the police by his nickname “Flex” and officers went to his home at approximately 3.45 am on 29 October 1998.  When informed that he had been identified at the scene, Langford averred that he was not there, a denial which he maintained throughout the investigation and trial.  On 30 October he was confronted with Alexander, who repeated his identification of Langford at the scene, but Langford continued to deny that he had been there or had been involved in the incident.

12.	Alexander’s identification of Freeman appears to have been to some extent less positive.  It emerged in the course of the evidence that he had not actually named him in the first place.  He seems to have called him “that rasta guy” and described him in a statement as a man whom he knew very well, whom he knew to be living at Murphy’s Lane and whom he sometimes saw at Canefield, which prompted Inspector Laudat to identify the suspect as Freeman.  In the early hours of 29 October Inspector Laudat went to Freeman’s home, but did not find him there.  Freeman was not apprehended until 6 November 1998, when he was found at the home of one Kerwin Benjamin.  He was hiding under a bed and had cut his locks.  He claimed to have been afraid, since he had heard that the police were looking for him and feared that he would be beaten if arrested by them.  He wanted to delay his arrest until the arrival from New York of his mother, who could arrange for a lawyer for his protection.  On 8 November he was confronted by Alexander, who identified him as one of the assailants, but Freeman continued to deny that he was concerned in the incident.

13.	In the course of his evidence Inspector Laudat deposed to a number of matters which he stated to the appellants at different times which constituted hearsay evidence.  On arresting Langford he told him, inter alia, that an eyewitness had identified him as one of the persons who beat Ossie Charles (Record, pages 27 and 37).  When interviewing Langford later he told him that an eyewitness had identified Freeman as one of the assailants (Record, page 29).   Inspector Laudat also referred in evidence to the fact that Alexander had told him that one of the persons was called “Flex” and was driving a blue Nissan bus (Record, page 39).  On 8 November 1998 before the confrontation between Alexander and Freeman Inspector Laudat told Freeman that he had brought the eyewitness who had seen him beating Ossie Charles on the night of 28 October (Record, page 31).

14.	Both accused gave evidence at trial.  Each deposed that he had been with other persons and not at the scene of the incident, and they each denied being with the other during the evening of 18 October 1998.

15.	It will be apparent from the foregoing account of the evidence that there were numerous difficulties with the identification evidence, which may be summarised under the following heads:
•		Alexander’s ability to see the assailants with sufficient clarity to make a reliable recognition, given the state of the lighting, his distance for much of the time from the fracas and the possible obstruction of his view by the minibus;

•		the fact that Ms Bridet did not recognise either Freeman or the victim Ossie Charles, both of whom she knew;

•		the discrepancy concerning the route taken by the assailants to the scene of the incident;

•		the discrepancies in the descriptions of the assailants’ clothing;

•		Alexander’s estimate of time;

•		his description of Langford running a knife over the back of the victim;

•		his failure to name Freeman to Inspector Laudat;

•		the uncertainty of motive for the appellants to attack the victim.

16.	These difficulties may tend to indicate that the light was not good enough for a reliable identification by anyone, or that Alexander was an unreliable historian, or both.  It was accordingly incumbent upon the trial judge to give a careful direction to the jury in his summing-up, and it was desirable that he should tailor it so that the strengths and weaknesses of the identification could be clearly appreciated and weighed up in reaching a verdict.  The need for a very careful summing-up on identification on recognition was the greater because there was no scientific evidence linking either appellant with the crime, neither made even a partial admission at any time and Ms Bridet was unable to make any identification.  Everything therefore turned on the reliability of Alexander’s account.  Cenac J appreciated this need, for he commenced the section of his summing-up in which he dealt with the identification issue by giving a warning which contained clear echoes of the classic exposition of Lord Widgery CJ in R v Turnbull [1977] QB 224, to which their Lordships will return later in this judgment.  The judge told the jury (pages 75-6 of the record):
“I deal now with the subject of identification.  It is very crucial to this case.  Because this is a trial where the case against the two accused depends wholly on the correctness of one or more identifications of them which the defence allege to be mistaken.  I must therefore warn you of the special need for caution before convicting the two accused or any of them in reliance on the evidence of identification.  That is because it is possible for an honest witness to make a mistaken identification.  There have been wrongful convictions in the past as a result of such mistakes.  An apparently convincing witness can be mistaken.  So can a number of apparently convincing witnesses.

You must examine carefully the circumstances in which the identification by each witness, and in this case the sole Prosecution witness, Joseph Alexander was made.  How long did he Alexander have the accused or the three persons he says he saw beating the deceased, how long did he have them under observation?  At what distance?  In what light?  Did anything interfere with that observation?  Had the witness ever seen the persons he observed before?  If so, how often?  If only occasionally, had he any special reason for remembering them?  How long was it between the original observation and the identification to the police?  Is there any marked difference between the description given by the witness to the police when he was first seen by Alexander and the appearance of the accused?  Those are the circumstances and the questions you have to take into consideration in determining the correctness of the identification of the men by Joseph Alexander.”

17.	The judge then told the jury that he would remind them of the specific weaknesses which appeared in the identification evidence.  He went on to deal with the changes in Alexander’s evidence about the length of time that he had known Freeman, the errors and discrepancies in his description of the clothing of the assailants, the discrepancies in the witnesses’ evidence concerning their hair styles, and Alexander’s failure to refer to Freeman by name.  He did not discuss in specific terms the lighting at the scene, the distance from which Alexander saw the incident, his position when he first recognised the appellants, the possibility that his view may have been obstructed by the minibus, the discrepancy between the witnesses’ accounts over the route which the assailants had taken or the obvious incorrectness of Alexander’s time estimate.  Counsel for the appellants laid some stress on the absence of discussion of these topics from the summing-up.

18.	The judge then described the evidence given by the appellants and the defence of alibi put forward by each.  At page 82 of the record he said to the jury:
“And even if you conclude that the alibi was false, that does not of itself entitle you to convict the accused. The Prosecution must still make you sure of their guilt.  An alibi is sometimes invented to bolster a genuine defence.”

He concluded his discussion of the evidence by reminding the jury of the essence of the appellants’ defence (page 89 of the record):
“Both accused are saying it is a case of mistaken identity: that the police and Prosecution are relying on one man, Joseph Alexander who is a very unreliable witness who made so many mistakes respecting the clothing they wore and the distances.”

19.	It is recorded in the judgment of Redhead JA in the Court of Appeal at paragraph 106 that the Director of Public Prosecutions, who appeared for the State on the appellants’ appeal, conceded that the judge’s failure to direct the jury in relation to the lighting conditions and the obstruction of Alexander’s view by the parked minibus and his failure to remind the jury that although he knew the appellants and was in effect recognising them, yet he could have been mistaken, as mistakes in recognition are sometimes made, constituted misdirections.  She submitted, however, that the court should apply the proviso.

20.	The majority in the Court of Appeal held that the identification evidence was sufficient to ground the conviction and that the judge adequately complied with the sense and spirit of the Turnbull guidelines.  They held that he had correctly dealt with the alibi evidence and left it with the jury with appropriate directions.  They also were of opinion that the evidence of Inspector Laudat’s putting it to the appellants that eyewitnesses had seen them beating the victim did not infringe the rule against hearsay or the prohibition against the admission of prior consistent statements.

21.	Redhead JA in his dissenting judgment held that there were serious questions as to the identification by Alexander of the appellants and that the judge’s directions had not been sufficient to satisfy the requirements of the law.  He considered that a clearer direction on the risks associated with recognition evidence was required and that the jury should have been told that the giving of a false alibi may not of itself be an indication that the person relying on it was in truth at the scene of the crime.  He was further of the view that the jury should have been warned not to rely on the evidence of matters being put to the appellants in interview as evidence of the truth of those matters.  He did not consider that the conviction was safe or satisfactory and did not regard it as a case for application of the proviso.

22.	The guidelines for directing juries in identification cases, which have been widely followed and were expressly approved by the Board in Reid, Dennis and Whylie v R (1989) 37 WIR 346, were set out by Lord Widgery CJ in R v Turnbull [1977] QB 224, giving the judgment of a five-judge court.  He first set out the general rule in the following passage at page 228:
“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 than identification of a stranger: but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

In relation to alibi evidence Lord Widgery said at page 230:
“Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi.  False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough.  Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can.  It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide any support for identification evidence.  The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.”

As the Board said in Mills and others v R (1995) 46 WIR 240, 246, the Turnbull principles do not impose a fixed formula for adoption in every case, and it will suffice if the judge’s directions comply with the sense and spirit of the guidelines.  The provision of a sufficient direction in cases which depend on identification evidence is nevertheless an essential principle and the Board has made it clear that it will scrutinise the summing-up in such cases and, if necessary, set aside verdicts if there has been a significant failure to apply the guidelines: see Bernard v R (1994) 45 WIR 296, 306, per Lord Lowry.

23.	It is of some importance that the judge should not only identify the evidence capable of supporting the identification, as Lord Widgery said, but should relate each of the factors material to the particular case to the evidence given at the trial.  Without seeking to specify a minimum standard, their Lordships commend to judges the sound advice given by Ibrahim JA in Court of Appeal of Trinidad and Tobago in Fuller v 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 which the trial judge is required to give to them and also in relation to the issues that arise for their determination.”

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 thitherto unknown to the identifying witness who is recollected by description.  That risk was adverted to by Lord Lane CJ in the Court of Appeal in R v Bentley [1991] Crim LR 620 and underlined by the Board in Aurelio Pop v R [2003] UKPC 40: (2003) 137 SJ 692, when their Lordships noted that the need in recognition cases for an appropriate Turnbull direction is not diminished.

25.	Mr Nicol QC for the appellants emphasised the difficulties in making a reliable identification in the circumstances of the case, which their Lordships have summarised in paragraph 15 of this judgment. He submitted that these were such that a proper summing up required a careful and systematic linking of the evidence with each of the factors material to the case.  Moreover, the judge should have given the jury a fuller warning about the risks of a false identification in recognition cases and about the implications arising from the giving of a false alibi.

26.	Their Lordships consider that there is considerable substance in these submissions.  The judge did give the jury a proper general direction on identification (pages 75-6 of the Record) and fully and accurately recounted to them the evidence given at trial.  Acceptance of the reliability of Alexander’s identification nevertheless involved serious problems, which merited examination in the light of the evidence.  He did remind the jury (Record, pages 76 et seq) of a number of specific weaknesses in the identification evidence.  He did not, however, go into the important issues of the distance between Alexander and the participants in the fracas when he identified each of the appellants, the lighting, the possibility that his view was obstructed, the incorrectness of Alexander’s estimate of the time occupied by the fight and the discrepancy between his evidence and that of Ms Bridet over the route taken by the assailants en route to the scene of the attack.  Their Lordships consider that the question of the sufficiency of the lighting, allied with that of Alexander’s distance from the assailants, required rather closer attention than it received. They feel that there is room for doubt whether Alexander may have made an honest mistake in identifying the appellants in indifferent lighting conditions.  This doubt is reinforced by the fact that Ms Bridet did not recognise Freeman, when the assailants ran past her in Cross Lane and were then in her view for a period of about ten minutes as the fight took place.  Nor did she identify the victim as Ossie Charles until she saw his face with the aid of a flashlight. Moreover, the discrepancies over the assailants’ route and the time which the fight occupied, in addition to those concerning the assailants’ clothing to which the judge referred, tend to throw doubt on Alexander’s reliability as an historian.  Their Lordships also consider that the possibility of obstruction of his view could usefully have received some mention, although it does seem possible that some part of the fight took place in Alexander’s view in the middle of the street, at the conclusion of which the assailants knocked Charles down and kicked him under the front of the minibus.

27.	The judge did not omit or abbreviate the Turnbull direction on the ground that it was a recognition case, in which he was correct.  He might with advantage have pointed out to the jury that people can make mistakes of recognition.  Judges could usefully refer to the reminder given by Lord Lane CJ in R v Bentley [1991] Crim LR 620, that many people have experienced thinking that they had seen someone in the street whom they knew, only to discover that they were wrong.  The expression “I could have sworn it was you” is an apposite remark to describe such an honest mistake.

28.	The judge referred briefly at page 82 of the Record to the relevance of a false alibi, when he said:
“And even if you conclude that the alibi was false, that does not of itself entitle you to convict the accused.  The Prosecution must make you sure of their guilt.  An alibi is sometimes invented to bolster a genuine defence.”

That direction is serviceable so far as it goes, but it would have been more effective if it had expanded to some extent on the reasons which may underlie a false alibi, on the lines of the instruction given in R v Turnbull at page 230, quoted in paragraph 22 above.

29.	Their Lordships accordingly have reached the conclusion that notwithstanding the judge’s conscientious efforts to comply with Turnbull requirements, the summing up fell short of the standard required to ensure that the difficulties involved in the identification of the appellants were placed before the jury with sufficient clarity in an ordered fashion.  They would add to this the judge’s failure to warn the jury that they must not take account of the hearsay statements recounted by Inspector Laudat to the appellants (set out in paragraph 13 above) as evidence of the truth of those statements. Taking all these matters cumulatively, their Lordships conclude that the convictions cannot be regarded as safe.  They do not regard it as an appropriate case in which to apply the proviso, for they could not be sufficiently satisfied that a jury properly directed would have reached the same conclusion.

30.	The conviction of each appellant will therefore be quashed.  In view of the length of time which has elapsed since the incident and the weaknesses in the identification of the appellants their Lordships do not consider that a new trial should be ordered.