Davies v R

Purported recognition evidence is not inadmissible merely because it is weak when viewed alone. Under Turnbull [1977] QB 224, the court must assess the quality of the recognition and the whole evidential picture. If other evidence is capable of supporting the recognition, the issue may properly be left to the jury with careful directions.

The same general approach applies to voice recognition, although it requires particular caution. A later voice procedure that tests recognition of a familiar voice may have limited value, but its limitations will ordinarily be addressed by cross-examination and directions rather than pre-trial exclusion.

The appellant was convicted at Newcastle Crown Court of murder and causing grievous bodily harm with intent after two masked gunmen entered a house and shot the two victims. The surviving victim, who had known the appellant for many years, purported to recognise the first gunman from his eyes and voice.

Permission to appeal was granted on whether trial counsel should have objected to that recognition evidence. The court also considered, as if permission had been granted, a proposed challenge to the trial judge’s directions. The central issue was whether the visual and voice recognition evidence was so weak that it should have been excluded, withdrawn from the jury, or differently directed upon.

1. Appeal dismissed. The conviction was safe. The trial process was fair and, when viewed as a whole, the evidence pointed strongly towards guilt.

2. The court held that trial counsel had not acted inexplicably or contrary to reason and good sense by declining to seek the exclusion of the recognition evidence before it was heard. This was purported recognition of the eyes and voice of a person known to the witness, not identification of an unknown stranger. Its reliability, the nature of the mask, and the circumstances of the incident required investigation in evidence.

3. Following Flemming (1986) 86 CAR 33 and Turnbull [1977] QB 224, a judge need not hold a trial within a trial merely because identification evidence is said to be weak. A pre-evidence ruling is appropriate only exceptionally, where the position is already clear. Further, weak identification evidence is not automatically excluded or withdrawn: it may be considered with other evidence capable of supporting its correctness.

4. The general Turnbull approach applied to voice recognition. The voice procedure had weaknesses because the witnesses were asked to identify a familiar voice from a longer recording than the words heard during the attack. Those weaknesses did not establish procedural unfairness or provide a basis for exclusion under the Police and Criminal Evidence Act 1984. They were matters for advocacy and direction.

5. The summing up was correct. The judge made clear that the visual recognition could not itself prove identity, directed particular caution about both forms of recognition, and permitted the jury to use the visual evidence only in conjunction with other evidence. There was substantial circumstantial evidence capable of supporting the recognition evidence.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2004] EWCA Crim 2521.
• Full Court: on 15 July 2004, granted leave on the complaint concerning trial counsel’s failure to object to the recognition evidence, but refused leave on other proposed grounds.
• Crown Court at Newcastle: on 14 June 2001, convicted the appellant of murder and causing grievous bodily harm with intent.