Chong Siew Fai CJ (Sabah & Sarawak):

Two questions were raised in this reference:

(1) Whether dock identification in court after a long lapse of time without holding an identification parade can be a sufficient basis for a conviction; and

(2) Whether in a case dependent solely on dock identification the failure by a magistrate to direct himself with regard to the visual evidence of identification in accordance with the established guidelines in R v. Turnbull [1976] 3 All ER 549 resulting in a conviction based on uncorroborated evidence of identity being quashed would constitute a substantial miscarriage of justice (bold added, save for the one under the case cited).

Question (1)

By the term "dock identification" we take it to mean identification of an accused for the first time in court at trial. And we shall attempt to answer the question posed with that meaning of the term in mind.

The question, as framed, is in general terms and lacks precise or essential facts necessary for a definite answer of "Yes" or "No". Much depends on the precise circumstances and the stance of the defence. How long is the "long lapse"? What are the circumstances in which a witness has seen the accused eg, the distance between him and the accused, the weather condition, any lighting particularly if at night, and, if so, quality of the lighting, the length of time the witness sees or observes the accused, any conversation carried on between them, whether the witness has known or seen the accused prior to the incident, and so forth. Facts such as those mentioned above are lacking, but they are essential for the purpose of arriving at a more definite answer to the above question referred.

Generally speaking, however, a dock identification in the sense as described above ie, identification of an accused for the first time in Court at the trial, is undesirable, and it would be a good practice to hold an identification parade, which, if it turns out to be positive, would tend to strengthen the case for the prosecution. But to hold that an identification parade must, in all circumstances, be conducted in order to sustain a conviction would be too stringent. There may well be situations where an identification parade cannot or need not be held, for example, where the attendance of the witness at the parade is physically impossible or impracticable or there are exceptional circumstances.

Briefly, therefore, the answer to Question (1) is: it depends on the particular facts and circumstances of each case.

Question (2)

As regards Question (2), it is important to note the following words used therein:

Whether ... resulting in a conviction ... being quashed ... would constitute a substantial miscarriage of justice.

In other words, the question is whether the question of such a conviction would constitute a substantial miscarriage of justice.

On the question as framed, the answer, in our opinion, is clearly in the negative.

We have considered the guidelines in R v. Turnbull [1976] 3 All ER 549 CA. We do not propose to reproduce them save pointing out that they may be found from pp. 551 i to 552 j and from p. 553 b to j in the above report. Of course, the guidelines in R v. Turnbull, supra, deal with directions to juries. In a summary trial, the trial magistrate assumes the functions of the judge and the jury.

In the instant case under reference, the facts and circumstances are different. In this case there were two identification witnesses, PW1 and PW2. In point of law, an identification by one witness can constitute support for the identification by another provided that the trial magistrate warns himself that even a number of honest witnesses can all be mistaken. In our present case, though the trial magistrate did not warn herself in like terms, she was mindful of the fact that PW1 and PW2 had never seen the accused prior to the incident on 1 or 2 April 1986. The quality of the identification evidence was good. In the circumstances as shown