Terrell Neilly v The Queen (Bahamas)

A dock identification is not made reliable merely because a witness had a good opportunity to observe the offender. The quality of the original observation and the reliability of the later dock identification are distinct issues. The normal practice is to hold an identification parade, and the absence of a good reason for not doing so is material. If dock identification is admitted, the jury must receive careful warnings about its dangers, including the risk of choosing the defendant simply because he is in the dock. The trial judge failed to address those matters. The conviction was therefore unsafe, and the appeal was allowed.

The appellant was convicted in The Bahamas of armed robbery and firearms offences. At trial, a witness who had not attended an identification parade identified him in the dock. The judge admitted the evidence, rejected a submission of no case, and later withdrew alternative receiving counts from the jury. The Court of Appeal dismissed the appeal on 7 September 2000. Before the Privy Council, the issues included the admissibility and summing-up of the dock identification, the withdrawal of the receiving counts, and whether the proviso could preserve the convictions despite the errors.

The Board, in the single judgment delivered by Sir Stanley Burnton, allowed the appeal and quashed the conviction.

1. Dock identification. The admissibility of dock identification evidence is a matter for the trial judge’s discretion, exercised in the interests of fairness and in light of all relevant circumstances. The quality of the witness’s observation must be considered separately from the circumstances of the later identification. The principles in R v Turnbull [1977] QB 224 concerning the duration and conditions of observation remain relevant, but dock identification carries additional risks.
2. The normal and proper practice is to hold an identification parade. If no parade has been held, the court must consider whether there was a good reason. A defendant’s temporary unavailability on the date of an earlier parade does not make a later dock identification more reliable, particularly where no parade was held after the defendant left hospital.
3. If dock identification is admitted, the judge must warn the jury of its inherent undesirability and dangers. The directions should address the lost opportunity to test the identification objectively, the possibility that a parade might have produced an inconclusive result, and the risk that the defendant will be assumed to be the perpetrator merely because he occupies the dock. The judge’s directions were deficient because they did not address those risks.
4. The judge’s decision to admit the identification was materially flawed. Her reasons addressed only the circumstances of observation and wrongly treated the defendant’s hospitalisation as a good reason for the absence of a parade. The identification should have been excluded.
5. Receiving count. Receiving is a distinct alternative to theft or robbery and is not a lesser included offence. Under section 6(3) of the Criminal Law Amendment Act 1967, a robbery indictment does not permit conviction for receiving unless a receiving count is included. The principle in R v Coutts [2006] UKHL 39 therefore had no application.
6. The withdrawal of the receiving count was unwise, but would not alone have made the robbery convictions unsafe if the evidence of participation in the robbery had been sufficient.
7. The proviso could not preserve the conviction. Apart from the dock identification, the evidence was as consistent with the appellant being a dishonest receiver as with his being one of the robbers. It was impossible to conclude that he was bound to have been convicted without the errors.

• Privy Council: Appeal allowed and conviction quashed.
• Court of Appeal of the Commonwealth of The Bahamas: Appeal dismissed on 7 September 2000.
• Supreme Court of The Bahamas: Following an aborted first trial, the appellant was convicted at the retrial by a majority verdict of 10 to 2 on the robbery and firearms charges.