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[1992] HCA 13
High Court of Australia
1985-01-27
McHugh JJ
Original judgment source is linked above.
High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Domican v The Queen [1992] HCA 13
ORDER Appeal allowed. Set aside the orders of the Court of Criminal Appeal of New South Wales and in lieu thereof allow the appeal against conviction to that Court, quash the conviction and order that there be a new trial.
1992, May 6 Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ.
The appellant, Thomas Christopher Domican, was convicted by a jury in the Supreme Court of New South Wales of shooting at Christopher Dale Flannery with intent to murder him. The appellant contends that the trial judge misdirected the jury on the issue of the identification of the gunman by failing to give specific warnings concerning various features of the evidence of an eyewitness to the shooting. He also contends that the Court of Criminal Appeal erred in holding that, although the trial judge's directions on identification fell short of the standard required by certain decisions of that Court, the direct and circumstantial evidence identifying the appellant with the crime "remained to remove any concern that the lack of specificity in the judge's warnings about identification evidence was such as to result in a mistrial". This Court has already granted the appellant special leave to appeal against his conviction. In our opinion, the appeal should be allowed.
At about 5.50 p.m. on 27 January 1985, a gunman suddenly fired about 30 shots from an Armalite rifle in the direction of Mr. Flannery as he and his wife were walking in the driveway of their home. The gunman was sitting in a green car parked at the front of the driveway. The Flannerys took cover behind the front of their car. A bullet went through Mr. Flannery's hand as he pushed Mrs. Flannery's head down. When the shooting stopped, she looked up and saw a man in the driver's seat of the car attempting to disconnect "a long square part of the gun". She said that she "just kept on watching him and he just kept on pulling at it and then when he couldn't get it out, after - I don't know how long it was - he just drove off". At the trial of the appellant, Mrs. Flannery claimed that the gunman appeared to be wearing a wig and false moustache although, when first interviewed and in subsequent statements, she had not suggested that he was disguised. She also said that some weeks after the shooting she saw the gunman, without the wig or moustache, driving a milk truck near her home. Some time later she and her mother saw the appellant sitting in an orange Ford Falcon sedan at the end of her street. He ducked as they approached. The letters of the number plate were "HHI". A police officer gave evidence that in March 1985 he had seen an orange Ford Falcon sedan "HHI 627" parked outside the appellant's home. Mrs. Flannery said that in April 1985 she recognized the appellant as the gunman after seeing him interviewed on four television programmes. But it was not until some months later that she informed the police that the appellant was the gunman. Indeed, in May 1985 she said she could not identify the gunman.
The Crown relied on confessional and circumstantial evidence as well as Mrs. Flannery's evidence to support the charge against the appellant. A witness, Robert Patience, who had been granted immunity from prosecution, gave evidence that he was present at conversations when, at the behest of a Mr. Barry McCann, the appellant and others made plans to kill Mr. Flannery. Mr. Patience said that the appellant told Mr. McCann that they had to get "wigs, moustaches, glasses". The witness claimed that he was present when the appellant showed him and two other persons a rifle with a silencer. He also gave evidence that shortly after the shooting he heard the appellant say to Mrs. McCann: "I missed him, love. I won't miss him next time." Mr. Patience said that on the following morning the appellant gave the rifle to Mr. McCann. Some months later police officers took possession of an Armalite rifle from a farm owed by Mr. McCann. The witness also said that during 1984 and 1985 the appellant had owned a green car.
Frederick Many and Eric Heuston, two persons serving prison sentences, gave evidence that while the appellant was on remand at Long Bay Gaol he had told them that he had shot at Mr. Flannery. Mr. Heuston said that the appellant had said that it was not "real smart" to use his own car in the attempt on Mr. Flannery's life.
Other witnesses gave evidence that, on the evening in question and after hearing loud noises in the street, they saw a green car driving past. One of the witnesses thought that there were three men in the car; another witness thought that there was one man in the front seat and one in the back seat. Another witness identified the car as a Mazda 121.
The son of Mr. and Mrs. Flannery testified that two days before the shooting he saw a person sitting in a dark green Mazda car parked in the street in which the Flannerys lived. He identified the appellant as the person sitting in the green Mazda after seeing him on one of the television programmes to which we have referred.
The appellant did not dispute that on the day of the shooting he owned a green Mazda coupe. But in evidence he said that on Friday, 25 January 1985, he had left the car in the street near a club because he had been too drunk to drive it home. The car was gone when he went to get it on the following Monday. It was common ground at the trial that at about 3.30 p.m. on Monday, 28 January 1985, the day after the shooting, the appellant had reported to the police that his green Mazda coupe had been stolen at some time between 9.00 p.m. on 25 January 1985 and 3.00 p.m. on 28 January 1985.
The learned trial judge gave the jury a very full direction on the dangers of acting on identification evidence. In particular, he instructed them that there were four important matters to be considered: whether the witness had previously known the person identified; how good an opportunity the witness had to get a clear picture of the person identified; how long had elapsed between the event and the first identification; and what were the circumstances and nature of that first identification. The appellant makes no complaint about the adequacy of these general warnings and instructions. But he contends that his Honour's directions on identification were inadequate because he failed to draw the jury's attention to a number of alleged weaknesses in the evidence of Mrs. Flannery. In the Court of Criminal Appeal [1] , Kirby A.C.J., who gave the leading judgment, recorded ten matters in respect of which the appellant claimed that his Honour should have given "specific warnings" in relation to "particular dangers" [2] . Kirby A.C.J. said that it would have been "desirable" for the trial judge to have drawn these matters to the attention of the jury [3] . It is unnecessary to set them out.
In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence [4] , and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 N.S.W., which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarize "the evidence given in the trial" if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused [5] . This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities" [6] . Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence [7] . Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence [8] . Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.
The foregoing statements are applicable to all criminal cases including those where the prosecution relies on identification evidence as the whole or part of the proof of guilt of an offence. Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed [9] . The terms of the warning need not follow any particular formula [10] . But it must be cogent and effective [11] . It must be appropriate to the circumstances of the case [12] . Consequently, the jury must be instructed "as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case" [13] . A warning in general terms is insufficient [14] . The attention of the jury "should be drawn to any weaknesses in the identification evidence" [14] . Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it [15] . It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
In the present case, there were a number of significant weaknesses in the identification evidence. At the time of the shooting, Mrs. Flannery did not know the appellant. Nearly nine months elapsed before she formally identified him from photographs which had been altered to show the appellant wearing a wig and a false moustache. By that time the appellant was a definite suspect, and Mrs. Flannery had seen him on television on a number of occasions and allegedly in the vicinity of her home. When she saw the gunman, he was some distance away. She was hiding behind another vehicle. He was leaning across the passenger's seat. She alleged that the gunman was disguised. Her opportunity to observe him was fleeting. She said in evidence that things "happened so quick". Moreover, her first observation of the gunman took place after about 30 shots had been fired in her direction, after she had seen her husband shot through the hand, and after her husband had physically pushed her head down. As a result of the shooting, she suffered shock.
In addition, in early statements to the police Mrs. Flannery did not claim that the gunman appeared to be wearing a wig and false moustache, although at the trial of the appellant she claimed that the gunman was so disguised. There was also a delay in the making of the identification. The incident occurred on 27 January 1985, yet Mrs. Flannery did not make a formal statement to the police identifying the appellant as the gunman until 7 October 1985. Mrs. Flannery also said to the police in May 1985 that she could not identify the gunman. At the trial she claimed that she was then too scared to do so. She also claimed to be distrustful of the police.
It is apparent, therefore, that the circumstances in which Mrs. Flannery saw and came to identify the gunman raise serious doubts as to the reliability of her identification. Moreover, parts of her evidence were proved to be unreliable. She appears to have seen only one person in the car, yet the witnesses who saw the green car leave the scene shortly after the shooting said that there was more than one person in the car. Furthermore, she described the car as a green Jaguar, a make of car with which she was familiar. She also claimed to have seen the appellant jogging near her home at a time when it was proved that his leg was in plaster.
Unfortunately, the learned trial judge's directions were not likely to impress upon the jury that the evidence of identification by Mrs. Flannery had a number of weaknesses. His Honour told the jury that "[s]udden and unexpected acts of violence such as Mrs. Flannery described in this case, can affect people caught up in the events in different ways." He said that the terror of the occasion "can serve to impress indelibly on the minds of some people the features of anyone they see involved in it. With other people the effect may be to obscure their judgment and their later recollection." He also raised the possibility of honest mistakes being made in identification and the need for caution when dealing with this type of evidence. But apart from these statements, his Honour's directions did not refer to any matters concerning Mrs. Flannery's evidence which would bring the attention of the jury to the many weaknesses in her evidence. To the contrary, some parts of his Honour's directions were capable of conveying the impression that her evidence of identification was reliable. After pointing out to the jury that "[w]hat it is important to know is whether the identification was aided by any suggestion made to the witness or any expectation on the part of the witness at the time when it was made", his Honour recited the evidence of Mrs. Flannery concerning the steps by which she came to identify the appellant. His Honour then said:
This is a case you might think where it was a recognition and realization by the witness that "that is the man" when it wasn't a circumstance in which there was any particular reason for her to believe that it was. It was a chance occurrence that she saw this man.
This passage may have been understood by the jury, as it was probably intended to be understood, as meaning that Mrs. Flannery's identification was more reliable than usual because she had no expectation that the person in the milk truck, in the orange Ford Falcon sedan and on television was the person who had shot her husband.
It is true that on two occasions in his summing up his Honour referred to the arguments of counsel for the appellant concerning the weaknesses in Mrs. Flannery's evidence of identification. Thus, his Honour referred to an argument that the evidence of a surveyor showed that Mrs. Flannery "would not have had the clear view of the person sitting in the car that she said she had". His Honour also said:
As to Mrs. Flannery, it was put by the defence that the circumstances in which she said that she saw the person with the gun in the car make her identification unreliable. The shock, her fear and the fact that on her own account the man was disguised, would make her identification unreliable.
It was also put that quite apart from the risk of genuine error, she may have believed that the shooter was the accused because of something Mr. Eustace told her and so, the argument runs, she would have a reason for deliberately lying.
You are also invited by the defence to reject her purported identification because she did not name the accused until September 1985 after previously telling the police from her first interview in May 1985 that she could not identify the person in the car.
However, as we have already pointed out, mere repetition of counsel's arguments is an insufficient discharge of the trial judge's duty to draw the jury's attention to any weaknesses in the identification evidence. If the matters to which counsel has referred may reasonably be regarded as undermining the reliability of the identification evidence, the trial judge must direct the jury that they are bound to take those matters into consideration in determining whether they will rely on that evidence. Consequently, the learned trial judge's directions on the issue of identification were not adequate and constituted a misdirection.
The Court of Criminal Appeal thought that the case was a borderline one which did not, however, require intervention by the Court. Kirby A.C.J. said that appellate courts must not overlook the practical circumstances of the trial, the role of counsel's addresses and the capacity of the jury to remember the evidence and see it in its entirety [16] . But, for his Honour, the most significant matter was that the identification evidence did not "stand alone in linking the appellant to the crime" [17] . He pointed out that there was "the whole series of evidence relating to the green Mazda car, an orange Falcon vehicle belonging to friends, the belated report of the theft of the Mazda car, the coherent direct evidence of Mr. Patience and, for what it is worth, the inculpating evidence of Mr. Many and Mr. Heuston" [17] . His Honour said that the "direct and circumstantial evidence identifying the appellant with the crime is very strong indeed" [17] . His Honour also relied on "the fact that the thrust of the appellant's attack on Mrs. Flannery's evidence at the trial was not that she had been mistaken in identifying the appellant but that her evidence was false" [17] .
As the learned Acting Chief Justice pointed out, the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case [18] . But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused [19] . The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused [20] . Of course, the other evidence in the case may be so compelling that a court of criminal appeal will conclude that the jury must have convicted on that evidence independently of the identification evidence. In such a case, the inadequacy of or lack of a warning concerning the identification evidence, although amounting to legal error, will not constitute a miscarriage of justice. But unless the Court of Criminal Appeal concludes that the jury must inevitably have convicted the accused independently of the identification evidence, the inadequacy of or lack of a warning concerning that evidence constitutes a miscarriage of justice even though the other evidence made a strong case against the accused.
In the present case, the Crown relied on four separate bodies of evidence. First, there was evidence of Mrs. Flannery identifying the appellant as the gunman. Secondly, there was the direct and circumstantial evidence of Mr. Patience. Thirdly, there was the evidence of Mr. Many and Mr. Heuston of admissions by the appellant. Any one of these bodies of evidence was sufficient to convict the appellant. Fourthly, there was a body of evidence which was not sufficient to convict the appellant but which supported the other evidence. It included evidence of sightings of a person identified as the appellant in the vicinity of the Flannerys' home before and after the shooting, the use of a green Mazda vehicle by the gunman, the ownership by the appellant of a green Mazda, and the claim of the appellant on the day after the shooting that his Mazda had been stolen during the previous three days.
The case against the appellant was on paper a strong one. But it was nevertheless one which a jury might reject whatever suspicions they might have had that the appellant was involved in the shooting. The jury might reasonably have regarded the evidence of Mr. Many and Mr. Heuston as worthless. Mr. Patience had been given an indemnity from prosecution over the matter. On his own admission, he had been present when the plan to kill Mr. Flannery had been discussed and had given at least some preliminary assistance to the appellant and others in the matter. It also appears that he had been questioned by the police concerning heroin importation. A reasonable jury would have scrutinised his evidence with great care.
If the jury were not prepared to convict on the evidence of Mr. Many, Mr. Heuston or Mr. Patience, the evidence of Mrs. Flannery identifying the appellant as the gunman was decisive. It was evidence, therefore, which required careful direction concerning the dangers of acting upon it. Although the jury were given a warning concerning the dangers of identification evidence, they were given very little assistance concerning the weaknesses of Mrs. Flannery's identification evidence. In that respect, the jury were misdirected. The apparent strength of other parts of the Crown case cannot rectify the omission of the trial judge to draw attention to the weaknesses in Mrs. Flannery's evidence. The case is not one where the Court of Criminal Appeal could conclude that the jury must inevitably have convicted the appellant despite the trial judge's failure to direct the jury to consider the specific weaknesses in Mrs. Flannery's evidence.
Since the misdirection of the trial judge may well have affected the jury's verdict, it is not possible to apply the proviso to s. 6(1) of the Criminal Appeal Act 1912 N.S.W.. The appeal must be allowed and a new trial ordered.
Mrs. Flannery's evidence identifying the appellant as the man who shot and wounded her husband necessarily evoked a warning by the trial judge of the danger of acting on that evidence alone to found a verdict of guilty. The need for a warning was not diminished by the attack on Mrs. Flannery's credibility and the suggestion, put to her in cross-examination, that she was fabricating her identification of the appellant as the culprit. A warning was given but, in the Court of Criminal Appeal, Kirby A.C.J. said that it would have been desirable for ten weaknesses in Mrs. Flannery's evidence, which his Honour itemised, to have been drawn to the jury's attention. His Honour found that the warning was defective because it fell short of the standard of specificity required. Campbell and Studdert JJ. agreed.
The danger of acting on visual identification evidence where the witness was not familiar with the appearance of the accused at the time of the relevant event is well recognized [21] . The courts, cognizant of this danger, have adopted a firm rule of practice that, when identification is in issue in such a case, a warning of the danger be given in terms that bring home to the jury the reason for the warning and the way in which the warning "should be taken into account by the jury in the particular circumstances of the case" [22] . In Kelleher v. The Queen Gibbs J. said [23] :
If a warning is necessary, the duty to give it will not be satisfactorily discharged by the perfunctory or half-hearted repetition of a formula, and a warning in general terms will not alone be sufficient; the jury should be given careful guidance as to the circumstances of the particular case, and their attention should be drawn to any weaknesses in the identification evidence. I do not understand the last sentence in this passage to mean that every argument which defence counsel could reasonably urge to impugn the reliability of identification evidence must be put by the trial judge to the jury as a weakness in the evidence which makes it dangerous to act on that evidence without corroboration. Provided a warning is, in the circumstances of the particular case, sufficient to alert the jury to the dangers of acting on the particular identification evidence given in the case [24] , the trial judge has performed his or her duty. To require a trial judge to do more is, in my respectful view, to require the judge to trespass upon the function of the jury and to impose upon the judge a burden which will seldom be capable of discharge. A trial judge is not required to identify and to point out to the jury all the weaknesses which time, reflection and remoteness from the trial reveal to the collective mind of the Court of Criminal Appeal. Trial judges can give a warning sufficient to alert the jury to the dangers without teasing out of the evidence all the weaknesses which may appear on subsequent reflection. I would respectfully adopt what Young C.J. said in Reg. v. Haidley and Alford [25] : To require trial judges to recite or refer to numerous propositions which could by the application of ingenuity be thought to be possibly relevant to the consideration of evidence of identification, tends not only to underestimate the intelligence of the average jury but also to make a judge's charge appear absurd and thereby to operate against the fair and proper administration of justice.
It is particularly important that the judgments of courts given in "identification" cases should be read secundum subjectam materiam. They should not be read as requiring a trial judge to discuss every aspect of the problems of visual identification in every case. The trial judge's directions to the jury should only be those that are necessary for the particular case before him.
This approach accords with the criticism by Street C.J. in De-Cressac [26] of the notion "that there is a series of individual items that a trial judge is obliged to refer to, almost as if they provided a check-list of matters to be covered in a summing-up where an issue of visual identification arises". His Honour stated his approach to the appeal in that case [27] : The present detailed ground of appeal is accordingly to be read as involving the proposition that in the particular circumstances of the case in hand the summing-up was defective in the sixteen aspects that are crystallized in its terms. Whilst, in respect of some of the sixteen aspects, this is a useful analysis for the purpose of evaluating the adequacy of the summing-up, I prefer to address myself to what I conceive to be the global question, that is to say, whether in the circumstances of this case the summing-up contained a warning which was appropriate and thorough, as well as containing sufficient discussion of the way in which the warning and the need for caution should be taken into account by the jury in the particular circumstances of the case they were called upon to consider. In so doing I would not wish to be taken to acquiesce in or assent to the validity in law of all of the sixteen heads of particulars. 1. The People (Attorney-General) v. Casey [No. 2], [1963] I.R. 33, at pp. 39-40; Reg. v. Sutton , [1970] 3 C.C.C. 152, at pp. 162-163; Davies and Cody v. The King (1937), 57 C.L.R. 170, at p. 182; Reg. v. Turnbull , [1977] Q.B. 224, at p. 228B; Kelleher v. The Queen (1974), 131 C.L.R. 534, at pp. 550-551. 2. Reg. v. De-Cressac (1985), 1 N.S.W.L.R. 381, at p. 385, per Street C.J. See also Reg. v. Turnbull, [1977] Q.B., at p. 228C, cited in Reid (Junior) v. The Queen , [1990] 1 A.C. 363, at p. 379. 3. (1974) 131 C.L.R., at p. 551. 4. Reg. v. Easom (1981), 28 S.A.S.R. 134, at p. 145, followed in Reg. v. Manh (1983), 33 S.A.S.R. 563, at pp. 568-569; see also Reg. v. Allen (1984), 16 A. Crim. R. 441, at p. 445. 5. [1984] V.R. 229, at p. 230. See also Reg. v. Vincec (1990), 50 A. Crim. R. 203, at p. 207. 6. (1985) 1 N.S.W.L.R., at p. 384. 7. ibid., at p. 385.
Although the Court of Criminal Appeal in the present case has not in terms imposed a more onerous duty on trial judges than is indicated by these authorities, the setting aside of the verdict has been supported, as the setting aside of the verdict in Reg. v. Finn [28] was supported, by a catena of the evidentiary weaknesses discovered by the Court of Criminal Appeal. In Reg. v. Bigeni [29] , Kirby P. referred to Reg. v. Allen and Reg. v. Finn as prescribing "stringent requirements"; in the present case, his Honour accepted that Reg. v. Allen and Reg. v. Finn set "high standards". The requirements of a direction necessarily vary with the evidence and the conduct of a case [30] ; the standard is determined by what is required to alert the jury to dangers of which they may not be sufficiently aware, notably the "ghastly risk [of mistaken identification] run in cases of fleeting encounters" [31] and "the risk that honest and convincing witnesses may be mistaken, especially where their opportunities for observing a previously unknown offender were limited" [32] . To bring home to the jury the substance of the warning, it is necessary to direct their attention to the dangers, judicially recognized, of acting upon the identification evidence given in the particular case, but that does not require the trial judge to lend his or her judicial authority to every argument reasonably open to defence counsel on the evidence. The purpose of the warning is to safeguard against otherwise-unappreciated dangers, not to deprecate the identification evidence. In my view, a verdict should not be set aside for want of an adequate warning unless the Court of Criminal Appeal is of the view that the trial was so conducted that the jury may have convicted without being fully aware of the danger of acting on the identification evidence in the case.
In the circumstances of this case, where the sole question in issue arising from Mrs. Flannery's evidence was identification, the experienced trial judge's warning against acting on her identification of the appellant seems to me to have been sufficient to alert the jury to the reasons why there was judicial misgiving about the reliability of her identification of the appellant. However, this is a minority view which turns merely on the particular directions given and the evidence of Mrs. Flannery to which it related. There is no purpose to be served in canvassing my appreciation of those directions and evidence.
Proceeding then on the view of the majority of this Court that the warning given by the trial judge was inadequate, the question arises whether the Court of Criminal Appeal was right to apply the proviso to s. 6 of the Criminal Appeal Act 1912 N.S.W. and to dismiss the appeal. I respectfully agree that the Court of Criminal Appeal was in error in applying the proviso. The evidence in this case fell into three distinct categories: the direct evidence of Mr. Patience as to the appellant's involvement in the shooting of Mr. Flannery; the confessional statements attributed to the appellant by Messrs Many and Heuston, who were fellow prisoners of the appellant; and the evidence of Mrs. Flannery identifying the appellant as the person in the green car who shot and wounded her husband. The jury might have reached a guilty verdict by acting on any of those three categories of evidence. Each category of evidence, without reference to the evidence in any other category, was sufficient to found a guilty verdict. The defect in the warning would vitiate only a conviction based on the identification evidence given by Mrs. Flannery, but it is impossible to determine the basis on which the jury founded their verdict.
The general principle is this: where, on the evidence and consistently with the directions of the trial judge, it is open to a jury to convict on any of two or more independent bases, a misdirection or an inadequate direction which would vitiate a conviction on one of those bases necessarily results in the setting aside of a guilty verdict despite the availability of another sound basis for conviction. That is because it is not possible to conclude that a guilty verdict has been founded on a sound basis when it was open to the jury to convict on a basis affected by the misdirection or inadequate direction. A Court of Criminal Appeal cannot apply the proviso by speculating either that the jury acted on a body of evidence which was unaffected by the misdirection or inadequate direction; nor can the Court speculate that, if the jury had acted on such evidence, they would have convicted. If a misdirection or inadequate direction would vitiate a conviction based on identification evidence and that basis of conviction was open to the jury, it is impossible to be satisfied that, by reason of the misdirection or inadequate direction, the accused did not lose a chance of acquittal.
The problem in the present case is not whether the case depends to some degree on Mrs. Flannery's evidence [33] . Clearly, the verdict might have been returned though the jury rejected her evidence. The problem arises because the verdict might have been based solely on her evidence. As it is possible that the jury's verdict was based solely on Mrs. Flannery's identification evidence, a defect in the trial judge's warning of the danger of acting on that evidence results in the appeal being allowed and the making of an order for a new trial. However, as I am of the opinion that the warning was adequate, I would dismiss the appeal.
Domican
The Queen