WAN FOOK-ON v. THE QUEEN

CACC000706/1982

Criminal law - identification of defendant the main issue - identifying witnesses shown photographs of defendant prior to identification parade - some photographs identified by the witnesses but not immediately marked as exhibits - other photographs never marked as exhibits - counsel under duty to request judge to mark exhibits - exhibited photographs not produced on hearing of appeal - convictions unsafe and unsatisfactory - certified copies of exhibited photographs should have been included in appeal record.

IN THE COURT OF APPEAL	1982, No. 706
	(Criminal)

BETWEEN

	WAN FOOK-ON	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Roberts, C.J., Huggins, V.-P. & Barker, J.A.

Dates of hearing: 8 and 9 December 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. We think that these convictions cannot stand. Although there is probably substance in the point taken by Mr. Sedgwick that the last three charges should have alleged obtaining by deception and attempted obtaining by deception rather than theft and attempted theft, this was (as he conceded) a matter which could have been cured.

2. What causes us anxiety is the evidence of identification, which was the main issue at the trial. On the occasions of the two alleged attempts photographs were taken of the offender with surveillance cameras. Photographs were shown by the police to each of the identifying witnesses before they attended an identification parade. That must have seriously reduced the value of the identification parades, but the identification by photographs might in some circumstances have been sufficient. The difficulty is that the record continually refers to photographs without identifying them. Eventually some of them were apparently marked as exhibits, but too late to make the earlier evidence clear. It is even possible that all were marked, although this fact was not recorded. We emphasise once more that it is the duty of counsel who asks a witness to produce an exhibit to request the judge to have it marked, if the judge has failed immediately to direct that this be done. Some note of such a direction must appear in the record. Here it appears from the list of exhibits that three rolls of film were exhibited, as Exhibit 6. No reference to Exhibit 6 appears in the transcript of the judge's notes. One witness was shown three rolls of film which he said were not the rolls he had been shown by the police. Another witness identified four rolls of film which had been shown to him by the police, but these also were not identified in the record. The identification of the rolls of film shown to the witnesses was vital, because upon them depended the value of the identifications of the Defendant which were made by reference to them.

3. Our difficulty is compounded by the fact that none of the original photographic exhibits has been available to us: despite the trial judge's having made an order which was clearly intended to ensure that the exhibits were retained in accordance with r.8 of the then current Criminal Appeal Rules, they were released to the police on the very day of the trial and have not been produced. Certified copies should have been included in the record of appeal. Photographs have been placed before us after an adjournment, but they do not bear any endorsement by the court of trial.

4. We take the view that we should order a re-trial, although it must be for the prosecution to decide whether they now have enough evidence to put before the District Court.

9th December 1982

Representation:

Sedgwick (D.L.A.) for Appellant.

Hagen for Crown/Respondent.