Nigel Patrick Sharrett v Francis Gerald Gill [1993] ACTSC 18; (1993) 113 FLR 316 (18 March 1993)

SUPREME COURT OF THE ACT

NIGEL PATRICK SHARRETT v. FRANCIS GERALD GILL
No. SCA139 of 1992
Number of pages - 23
Criminal Law - Inferior Courts - Appeal and New Trial
[1993] ACTSC 18; (1993) 65 A Crim R 44
(1993) 113 FLR 316

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Criminal Law - Evidence - Identification - Identical twins - Danger of convicting solely on identification evidence - Summary trial by magistrate - Warnings necessary.

Inferior courts - Justices - Summary trial of criminal charge - identification evidence - Warnings necessary.

Appeal and new trial - Appeal from Magistrates Court to Supreme Court - Appeal by way of rehearing - Distinguished from appeal from Supreme Court to Federal Court - Findings of fact.

R v. Turnbull (1977) QB 224

Domican v. The Queen [1992] HCA 13; (1992) 173 CLR 555

Grbic v. Pitkethly [1992] FCA 451; (1992) 110 ALR 577

Craig v. The King [1933] HCA 41; (1933) 49 CLR 429

R v. Smith (1987) VR 907

HEARING

CANBERRA, 29 January 1993
18:3:1993

Counsel for the appellant: Mr. T. O'Donnell

Solicitors for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Mr. S. Whybrow

Solicitors for the respondent: Director of Public Prosecutions

ORDER

The Court orders that:
1. The appeal be allowed and the conviction and orders of the

Magistrate be set aside.
2. The respondent pay the costs of the appellant in this Court
and in the Court below.

DECISION

The appellant was charged with driving a motor vehicle whilst disqualified, contrary to para.193A(5)(b) of the Motor Traffic Act 1936. His defence was that he was mistaken for his twin brother. He gave evidence and called witnesses to support an alibi. The Magistrate found that the evidence of the appellant and his witnesses was unacceptable and convicted him. He appeals against that conviction.

2. Because of the unusual circumstances of the case, it is necessary once again to state the principles applicable. In accordance with sub-s.214(2) of the Magistrates Court Act 1930, the appeal is a rehearing on the evidence before the Magistrate. There must be an independent decision by this Court on the ultimate issue of the alleged guilt of the appellant. It is well accepted that the Magistrate enjoyed the advantage of seeing and hearing the witnesses and forming his own conclusions as to their truthfulness as witnesses and as to their reliability as observers and recounters of past events and observations. Where the Magistrate has used that advantage to make primary findings of fact, this Court will not interfere with those findings unless they are inherently implausible or contrary to accepted facts or other clearly established facts: Uranerz (Aust.) Pty Ltd v. Hale (1980) 30 ALR 193. As to inferences to be drawn from the primary facts, it is considered that the appellate court is in as good a position as the Magistrate to draw such inferences, and if the appellate court draws inferences from the primary facts which are different from the inferences drawn by the Magistrate, then it is the duty of the appellate court to act upon the inferences drawn by it: Warren v. Coombes and Anor. (1979) 142 CLR 551.

3. As to matters of law, however, this Court is bound to act upon its own view of the law to be applied in the case. If the Magistrate's decision is affected by error of law, then this Court must act to correct the error.

4. It is the submission of the appellant in the present case that the Magistrate's decision that the appellant was the person driving the vehicle in question, although a decision of fact, is tainted by error of law. The error of law, so it is submitted, is the failure of the Magistrate to recognize and apply the principles of law relating to the dangers of acting upon identification evidence. It is common ground that in his reasons for judgment the Magistrate made no express reference to any such dangers and it is submitted that the failure to warn himself expressly of such dangers amounted to a failure to recognize them.

5. The respondent, Constable Gill, a Constable in the Australian Federal Police, gave the following evidence. At about 4 p.m. on 26 April 1992 he was seated in the driver's seat of a stationary police vehicle facing south in Covington Crescent, Charnwood. He saw a gold Fairlane car about 150 metres away to the south in Covington Crescent travelling north towards the police vehicle. Constable Gill kept the vehicle under observation as it proceeded towards him at about 30 to 40 kilometres per hour. There were cracks in the windscreen of the Fairlane, but they were on the passenger's side and did not obscure Constable Gill's view of the driver. He saw that the driver of the approaching car had a moustache but was otherwise relatively clean-shaven. As the car passed the police vehicle and the driver was some ten feet from him, Constable Gill had a brief view of the driver through the side windows of the respective vehicles. He recognized the driver as the appellant. As the car passed the police vehicle, the appellant appeared to look at the police vehicle and the car accelerated away.

6. Constable Gill gave chase in the police vehicle but could not catch up with the Fairlane. The police found it soon afterwards, abandoned, in a nearby shopping centre. The police returned to Covington Crescent and continued observation near a house where the appellant lived. After fifteen to twenty minutes the twin brother, Mark Sharrett, arrived in a mustard coloured Corolla car and went into and out of the house. According to Constable Gill's observation, he had a full beard and a moustache. The appellant arrived soon afterwards on foot and entered the house. The police went to the house. The appellant's mother answered the door. She denied that the appellant was there. The police searched the house but the appellant was not to be found.

7. Later that day Mark Sharrett rang Constable Gill at the Belconnen Police Station and told him that he was the driver of both the Fairlane and Corolla observed by the police.

8. On 30 April 1992 Constable Gill returned to the appellant's house and had a conversation with him. The appellant denied being the driver of the Fairlane, but admitted that his driving licence was cancelled. Constable Gill said that on this occasion he saw what he described as several days growth on the face of the appellant, that is to say, a beard of about one centimetre in length.

9. Constable Gill's capacity to recognize the appellant, and to recognize the twin brother, was based on some prior acquaintance. According to his own evidence, he had seen the appellant on two previous occasions in the presence of the twin brother, and had seen him on other occasions although not in the presence of the twin brother. Constable Gill had spoken to the appellant on at least one of those previous occasions. I interpolate here that, according to the appellant's evidence, Constable Gill had seen him on some five or six previous occasions and on some such occasions in the company of his brother.

10. Constable Brett Simpson, also of the Australian Federal Police, was with Constable Gill on the day of the alleged offence and was seated in the passenger's front seat of the police vehicle. His evidence of the events was similar to that of Constable Gill. He had never seen the appellant or his brother before. On the central issue of identification he was able to say only that the driver of the Fairlane was clean-shaven and the driver of the Corolla seen to arrive later at the appellant's house was bearded. He observed the driver of the Fairlane, the beardless one, arrive at the house on foot before the arrival of the Corolla vehicle, with bearded driver. In other words, he had the order of arrival at the house of the two persons the reverse of that of Constable Gill.

11. Constable Gregory Mowle accompanied Constable Gill to the appellant's house on 30 April 1992. His evidence, which was not objected to, was that the appellant, whom he identified in court, was the person spoken to at the house. It appeared to Constable Mowle that the appellant's beard was thicker or longer at the date of hearing than at the date of conversation, that his hair might also be a bit longer but that basically his appearance was very similar.

12. Evidence was given for the defence by the appellant, Mark Sharrett, Ms. Linda Graham and Mrs. Alice Sharrett. Their evidence was tendered to prove that it was Mark Sharrett who was the driver of the Fairlane and that the appellant had spent the whole of the day at Ms. Graham's house until about 5.30 p.m.

13. Although this evidence was directed at the issue of identification of the driver of the Fairlane, it asserted that no offence at all had been committed, because Mark Sharrett was the holder of a driver's licence. In giving evidence that he was the driver, Mark Sharrett was by no means confessing to a crime.

14. The evidence of the defence witnesses given to support the alibi was full of inconsistency and implausibility. The Magistrate understandably rejected it, as he was entitled to do.

15. The question remains whether, having rejected the positive evidence called on behalf of the appellant, did the Magistrate properly assess the only evidence that was left, namely the evidence tendered in the prosecution case? It is of course possible for prosecution evidence to be supported and augmented by evidence given in the defence case, but the Magistrate did not make any findings to that effect. Although the Magistrate was clearly of the view, and understandably so, that the witnesses had concocted a story about the alibi, he did not make any finding that the evidence of the appellant on the issue of alibi, which he rejected, was a fabrication motivated by a consciousness of guilt. Without a finding to that effect by the Magistrate, the case stood to be decided on the sufficiency of the evidence in the prosecution case, properly evaluated: Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1; Steinberg v. FCT (1975) 134 CLR 694.

16. What makes the present case distinctive is that the appellant had an identical twin brother. There was no evidence as to their age. They were probably in their early twenties. Both were registered as the joint owners of the vehicle in question. Both were shown to be in the vicinity at about the time in question. It was also shown that both were bearded, more or less. Apart from the extent to which one may have had more beard than the other, there were no obvious features to distinguish one from the other - or for that matter, from anybody else. One or the other of the brothers had to be the driver of the car. It could not have been both. In absolute terms there must have been a possibility that Constable Gill was incorrect in identifying the driver as the appellant. His observation was subject to ordinary human frailty and limitation. The question was whether there was a reasonable possibility of his being mistaken.

17. The fallibility attendant upon the recognition by one person of another, or conversely, the capacity of one person to pretend successfully to be another, has held a fascination for writers and audiences at least since classical times. The potential consequences range from comedy to tragedy. In this century the courts in this country and in England have repeatedly expressed concern about the dangers of convicting an accused person on identification evidence which is subject to human error. The object is to avoid, in particular, the "ghastly errors run in cases of fleeting encounters": Junior Reid and Others v. The Queen (1989) 3 WLR 771. The cases stress that there should not be a conviction without prior express reference to the dangers of convicting on identification evidence. In Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395 at 426-7, Mason J (as he then was) said in what has become a well-known passage:

"Identification is notoriously uncertain. It depends on so many
variables. They include the difficulty one has in recognizing on a
subsequent occasion a person observed, perhaps fleetingly, on a former
occasion; the extent of the opportunity for observation in a variety
of circumstances; the vagaries of human perception and recollection;
and the tendency of the mind to respond to suggestions, notably the
tendency to substitute a photographic image once seen for a hazy
recollection of the person initially observed."

18. The consequences of judicial acknowledgement of the unreliability of identification evidence are well recognized, at least for jury trials. Some of those consequences are as follows:

1. A jury has to be warned of the dangers associated with convicting
on such evidence. The duty to give such a warning is not discharged
by the perfunctory or halfhearted repetition of the formula, and a
warning in general terms will not alone suffice: Kelleher v. The Queen
[1974] HCA 48; (1974) 131 CLR 534 at 551 per Gibbs J. In other words, the warning
needs to be comprehensive, enthusiastic and tailored to meet the needs
of the particular case. It should be couched in terms which indicate
to the jury that it has the weight and authority of the court behind
it: Davies and Cody v. The King [1937] HCA 27; (1937) 57 CLR 170.
2. Where the witness was not acquainted with the accused prior to the
occasion in question, an identification parade should be held, and if
one is not held, evidence of identification by the witness may be
excluded from the consideration of the jury on the ground of
unfairness to the accused: Alexander.
3. Because the circumstances inevitably suggest that the accused
person present in court is the person in question, in-court
identification evidence is in general no longer allowed because of
likely unfairness to the accused: Alexander. Any identification in
circumstances which suggest to the witness that the person identified
is the accused is likely to be disallowed on the ground
that its prejudicial effect outweighs its probative value.
4. The duty to give warnings about the danger of convicting on
identification evidence must be discharged despite other evidence
which, if accepted, is sufficient to convict, as the jury may reject
the other evidence and decide to convict solely on the basis of the
identification evidence: Domican v. The Queen [1992] HCA 13; (1992) 173 CLR 555.
5. Moreover, the content of the judicial warning, although not limited
to or commencing with a particular formula, must draw to the jury's
attention the danger that an honest and acceptable witness may
nevertheless be mistaken on the subject of identification: Kelleher
per Gibbs J at 550.
6. In England, where, in the opinion of the judge, the identification
evidence is of poor quality, the judge should direct an acquittal
unless there is other evidence which goes to support the correctness
of the identification: R v. Turnbull (1977) QB 224.
7. In Australia there is no power in a trial judge to direct an
acquittal on the ground that in an appeal it would be found that a
verdict of guilty would be unsafe or unsatisfactory; if there is
evidence (even if tenuous or inherently weak or vague) which can be
taken into account by the jury and that evidence is capable of
supporting a verdict of guilty, the matter is to be left
to the jury: Doney v. The Queen [1990] HCA 51; (1990) 171 CLR 207. However, the
general powers of a court of criminal appeal to set aside a conviction
on the ground that it is unsafe and unsatisfactory will apply to
convictions based on identification evidence with all the limitations
and dangers of such evidence well in mind.

19. For the purposes of this appeal, the first question which emerges from the above is whether the above rules apply to the trial of charges without a jury. The question was answered in Grbic v. Pitkethly [1992] FCA 451; (1992) 110 ALR 577. A Full Court of the Federal Court of Australia by majority upheld an appeal against a decision of this Court which dismissed an appeal against a conviction by a Magistrate of a charge of assault where the identification of the appellant by a number of eye-witnesses was disputed. Sheppard J, after remarking that the case was an important and difficult one, described the process of decision-making in criminal cases where the identification of the accused was in dispute. He did so at 588 in the following terms:

"The jury is the tribunal of fact and determines issues of fact guided
by the directions of the trial judge. The judge and the jury have
separate and distinct functions. If identification is in issue, it is
for the judge to determine whether or not to admit the evidence of
identification. If it is admitted, the judge's task is to give the
jury the appropriate directions and warnings about the way they should
deal with the evidence. In a case tried without a jury, the tribunal
will not usually reject the evidence, but it will be faced with the
question whether, in the light of the totality of the evidence, it can
safely conclude that it has been established beyond reasonable doubt
that the crime was committed by the accused. In reaching its
conclusion, the tribunal must give itself the appropriate warnings of
the dangers inherent in identification evidence in cases where the
accused was not previously known to the witnesses. It then needs to
consider those warnings and to be sure that it has heeded them. This
does not mean that it is to be overawed by them, but it needs to pay
them real attention. Finally, it has to determine whether it is
satisfied of the guilt of the accused. Inevitably, these
considerations will tend to overlap and resolve themselves into one
overall question. At the heart of that question will be the degree of
satisfaction which the tribunal has with the strength of the
identification evidence. An appellate court called upon to review a
conviction on the ground that it is unsafe or unsatisfactory because
of the nature of the identification evidence in the case must also
give close attention to that matter. In doing so it will need to
consider whether, in all the circumstances, the court below could
safely have arrived at a conclusion of guilt" (emphasis added).

20. In upholding the appeal, Sheppard J said that he did so for a number of reasons. They included reservations about the adequacy of the directions the Magistrate gave to himself about the dangers of in-court identification and about whether the Magistrate heeded the directions he did give himself. Higgins J. agreed that the appeal should be allowed, for essentially similar reasons, including in particular the failure of the Magistrate, and this Court on appeal, to expressly advert to the distinction between credit (in the sense of credibility) on the one hand and reliability on the other hand in the case of identification witnesses. Higgins J also considered that the failure of the police to hold an identification parade was a matter which went to show that the conviction was unsafe and unsatisfactory.

21. In the present appeal, counsel for the appellant properly conceded that an identification parade was not a practical requirement, and that no unfairness to the appellant flowed from the absence of an identification parade.

22. In the United States the problem of mistaken identification appears to have gone unrecognized by the courts there, except insofar as it may involve denial of the constitutional right of due process. A line-up (the same procedure as an identification parade) is regarded as part of the accusatory phase of the criminal justice system, and an accused person who is subjected to a line-up is entitled therefore to be represented at the line-up by counsel and to have the line-up procedure conducted in accordance with due process. Denial of due process at the line-up will lead to exclusion at the trial, not only of the evidence of the identification at the line-up, but also of any identification in court, it being considered that the latter identification is tainted by the earlier. However, where there is no evidence of an unconstitutional line-up, there is no "per se rule" of exclusion of courtroom identification: United States v. Wade (1967) 388 US 218, 18 L ed 2 1149.

23. The cases in Australia and England are collected in Report No. 26 of the Australian Law Reform Commission, Evidence chapter 18. The Report makes no reference to any United States or Canadian authorities or principles of law. There is, however, in the Report comprehensive discussion of and reference to psychological research in the United States on the human faculties of observation and memory, from which the Report derives a general proposition (p 229) that the accuracy of eye-witness identification in general is subject to weaknesses and dangers additional to those that attach to eye-witness testimony generally.

24. However, I am unaware of any authority in this country or elsewhere (and counsel was not able to cite any) that lays down a general principle that all eye-witness testimony is subject to weaknesses and dangers. It would be surprising if there were such a principle. Of course, everybody knows that everybody else has human failings with regard to such matters as observation, interpretation, recollection and articulateness and such failings are assumed to be taken into account in most cases by the tribunal of fact unless there is some particular need for the fact-finder to refer to or to be referred to some aspect of the case where such failings are relevant. The highest judicial authorities emphasize that, in jury trials, cases of disputed identification require express and precise reference to these human failings along the lines already indicated, and this principle has been extended to trials without a jury. However, it is hard to imagine life where people are not able to act safely and sensibly upon their observations of what they see and hear, and even upon their identification of fellow human beings by such observations. The ability to distinguish one human being from another and to recognize a person as one previously encountered are surely basic skills indispensable to social existence, and skills well acquired at an early age. What the lawyers call identification is essentially no different from what is generally known as recognition.

25. In R v. Smith (1987) VR 907, Vincent J ruled inadmissible evidence of a psychologist who proposed to testify as to the unreliability of eye-witness evidence. After remarking that there was no doubt that the matter of identification must be approached with considerable care and that the question: "Is this the man?", may very well be a deadly invitation to injustice, Vincent J said at 910:

"Processes of human perception have been the subject of considerable
analysis in a number of other disciplines over recent years. The
assumptions generally made in relation to them and upon which trials
have been conducted for generations have been queried and on occasions
possibly thrown into doubt by researches conducted in those
disciplines. Nevertheless, in general terms, the conduct of criminal
trials still depends upon the acceptance of a number of premises.
Among these are assumptions that human beings are capable of observing
events, of recalling that which has been observed and subsequently,
verbally for the most part, repeating that which has been heard and
describing that which has been seen. These basic assumptions still
remain fundamental to the operation of the criminal justice system."

26. An important feature of those cases where the problem of identification has been the subject of judicial concern in Australia and England during this century has been the lack of the witness' prior acquaintance with the person identified. The witness claiming to recognize or identify one person, known or assumed to be the accused, as the same person observed on a prior occasion, usually in incriminating circumstances, has had no prior acquaintance with that person or no prior knowledge of the person's appearance or voice or whatever it is that is said to be the distinguishing observable characteristic of the person which enables recognition to take place.

27. Craig v. The King [1933] HCA 41; (1933) 49 CLR 429 is one case in which there was recognition of the variety of circumstances which might lead a witness to identify a person as one previously observed. Evatt J and McTiernan J made explicit reference to the distinction between the warning which should be given to the jury where the witness had no prior acquaintance with the person observed and the instruction or direction that might be given in a case of close acquaintance. In the case before the High Court the identifying witness had no prior acquaintance with the accused and, on one view, there was no evidence implicating the accused apart from the identification evidence. Evatt J and McTiernan J said at 450 that there should have been a warning to the jury in the terms given by Lord Guthrie in the trial of Oscar Slater (Notable British Trials, 3rd ed. (Roughead) (1929)). The warning quoted in the judgment is so clear that I reproduce it in full:

"Next we must consider the evidence of identification and its value.
Not a word too much has been said on that matter by the Lord Advocate
and Mr. M'Clure. It is extremely important. I express the point thus
- it would not be safe to convict the prisoner merely on the evidence
of personal impression of his identity with the man seen flying from
the house, on the part of strangers to him, without reference to any
marked personality or personal peculiarities, and without
corroboration derived from other kinds of evidence. My proposition
involves a distinction between the identification, by personal
impression, of a strange person, and the identification, by personal
impression, of a familiar person. Suppose that a father told you that
his son, who was resident in his house, had been seen by him in
Princes Street yesterday. That would be admirable evidence. But if a
person who had only seen the son once in his life told you that he had
seen him in Princes Street yesterday, that would be evidence of
slender value, unless the son had a marked personality, or unless he
had some peculiarity about him, such as a very peculiar walk, or
unless there were corroboration, such as that the man, when spoken to,
answered to the name of the particular individual .... Then, again,
people differ as to the extent of a resemblance, or even whether there
is any. You may have seen a strong resemblance, but one of your
friends says that he can see no resemblance at all, and, when the two
people are brought together, you see that there is nothing but a very
general similarity. That applies to the personal impression of a
stranger in reference to a stranger."

28. The Court of Appeal in Turnbull distinguished between "good" identification evidence and "poor" identification evidence. Although Turnbull is frequently relied upon for the consequences of identification evidence in the latter category, it seems to have received little attention with regard to evidence that does not fall into that category. In fact what was said in relation to "good" identification evidence in Turnbull is consistent with the summing-up of Lord Guthrie quoted and approved in Craig. At 138 the Court of Appeal said as follows:

"In our judgment when the quality is good as for example when the
identification is made after a long period of observation, or in
satisfactory conditions by a relative, a neighbour, a close friend, a
workmate and the like, the jury can safely be left to assess the value
of the identifying evidence even though there is no other evidence to
support it: provided always, however, that an adequate warning has
been given about the special need for caution. Were the courts to
adjudge otherwise, affronts to justice would frequently occur."

29. The difficulty about adopting the Turnbull approach is that the evidence in particular cases seldom falls distinctly into the "good" or "poor" category. It is usually relatively good or relatively poor. In the present case, I think that there were some weaknesses in the identification and that they should have been recognized by the Magistrate in the warning he was required to give himself. In my view, whilst the person was not previously unknown to the witness, there was nevertheless some danger in accepting Constable Gill's evidence identifying the appellant as the driver of the car. Although it was broad daylight, Constable Gill had only a brief opportunity to observe the driver as the other car went past him. Furthermore, although Constable Gill had seen the appellant on a number of previous occasions, it was on six occasions at the most, and we do not know in what circumstances. On only one or two of those occasions was the appellant's twin brother present. The evidence suggests that Constable Gill may have been waiting in the vicinity expecting to find the appellant driving a motor vehicle. In that frame of mind he may have been eager, even if only subconsciously so, to recognize the driver of the particular vehicle to be the appellant. It was never suggested to Constable Gill in cross-examination that such was his state of mind. However, according to Domican, all possible weaknesses in the identification evidence should be drawn to the attention of the tribunal of fact and made part of the warning, and, according to Grbic, it is unfair to expect counsel for the defence to cross-examine on matters which have been left incomplete by the prosecution, as the answers might be unfavourable to the accused.

30. Both Constable Gill and Constable Simpson gave evidence that the driver of the Fairlane and the man who arrived on foot were one and the same, and that that man was relatively clean-shaven, whereas the driver of the Corolla had a beard. To some extent the consistency between the witnesses strengthens the prosecution case, but for the purpose of identifying such weaknesses and drawing them to the attention of the tribunal of fact, it seems that the strengths, if any, in the prosecution case have to be ignored.

31. That there were points of weakness in the identification evidence cannot be overlooked. Perhaps the Magistrate recognized them and did approach the case with the proper caution. The difficulty is that he did not say so. The combined effect of Grbic and Domican, as I see it, is that the Magistrate was required to search out the weaknesses and then expressly warn himself of the various dangers. This he did not do. Accordingly, the conviction would be liable to be set aside as unsafe and unsatisfactory by a court sitting as a court of criminal appeal. This Court does not sit as a court of criminal appeal and must decide the case by way of rehearing. The question is not whether the conviction is unsafe but whether the appellate court is convinced beyond reasonable doubt of the guilt of the appellant. In more precise terms, in the circumstances of the case, the question is whether, accepting the findings of primary fact by the Magistrate, and accepting his attitude towards the credit of witnesses, and indeed his finding as to the dissimilarity in appearance of the two witnesses, and issuing the warnings to myself which the Magistrate should have expressly issued to himself, there was any reasonable possibility of mistake on the part of Constable Gill and any reasonable possibility that the person he saw was the appellant's twin brother. I think that in answering the question, I should take into consideration the fact that the Magistrate's finding as to the degree of dissimilarity between the appellant and his twin brother was made without an express recognition of the possibility of error or the limited nature of the opportunity Constable Gill had to observe the personal and facial characteristics of the driver of the vehicle at the time he saw it being driven, limited indeed when compared with the opportunity the Magistrate had to observe the two witnesses in the courtroom.

32. Accordingly the prosecution case rests almost entirely on the observation made by Constable Gill at the time in question, with all the attendant possibility of error. Although as a tribunal of fact I am free to convict so long as I expressly warn myself on the dangers of doing so, I find it impossible to say that there is not some doubt about the identification of the appellant as the driver of the car in question and impossible to say that the doubt is not reasonable.

33. The result may seem peculiar in a case where the tribunal when determining the facts heard and saw the two persons whose appearance and identification was in question, came to the conclusion that there were dissimilarities in their appearance, rejected their evidence on the question of who it was that was driving the car and accepted that of the Constable who was acquainted with them both. However, the law in this country is that where an accused person disputes that he or she was the person who committed the crime in question, an issue which is raised by a plea of not guilty, very stringent proof is required of the prosecution. A jury must be warned by the judge in strong and enthusiastic terms of the various dangers attendant upon the acceptance of identification evidence and the judge must further point out to the jury all possible points of weakness in that evidence, regardless of whether they have been discovered or mentioned by defence counsel. A magistrate or judge sitting alone must expressly remind himself or herself of those dangers and weaknesses. If not, a conviction based upon such evidence (and, at least in a jury trial, regardless of any other evidence implicating the accused) is liable to be set aside at some stage in the judicial process. In an appeal by way of rehearing from a magistrate sitting alone where the magistrate has not expressly issued the warnings, the conviction may not necessarily be set aside, as the appeal court, after issuing the warnings to itself, may be left in no doubt. However, that is not so in the present appeal. There is a residual and reasonable doubt.

34. For these reasons the appeal is allowed and the conviction and orders of the Magistrate set aside. The respondent is to pay the costs of the appellant in this Court and in the Court below.