R v Pemberton
R v Pemberton
(1993) 99 Cr App Rep 228
Judgment Date: 15/10/1993
Catchwords & Digest
CRIMINAL LAW, EVIDENCE AND PROCEDURE – TRIAL – DIRECTION TO JURY – ALIBI EVIDENCE – WITNESS GIVING EVIDENCE OF BEING WITH ACCUSED AT TIME OF OFFENCE – WITNESS DISCLOSING IN CROSS-EXAMINATION THAT UNABLE TO RECOLLECT WHICH NIGHT WAS IN QUESTION – IDENTIFICATION EVIDENCE – WHETHER JUDGE OUGHT TO HAVE DIRECTED JURY ON ALIBI EVIDENCE
The appellant was charged with robbery following an incident in which money was stolen from a mini-cab driver by a man who absconded. The mini-cab driver picked the appellant out of an identification parade. The main issue at the trial was the question of identification. The appellant contended that he was at home with his grandmother at the time of the offence. The appellant did not give evidence. His grandmother gave evidence that she remembered him being home on that night. When she was cross-examined it emerged that she could not in fact remember precisely which night she was being asked to recollect. The only other evidence was from the appellant’s legal representative, who criticised the identification parade. The appellant was convicted and appealed against his conviction. He contended, inter alia, that the judge had erred in his summing-up, in that he had omitted to give a direction on the alibi issue.
Held – On the facts of the case, the collapse of the appellant’s alibi evidence, taken with his failure to give evidence, would have had a significant effect on the jury, who might have approached the case on the basis that that suggested that it was right to conclude that the appellant had been correctly identified by the driver. Given that situation, the jury ought to have been given proper directions as to their approach if they rejected the alibi evidence; in other words, a Turnbull ( R v Turnbull  3 All ER 549) direction had been required. Accordingly, the appeal would be allowed.
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|Applied||R v Brown||(2011) 62 WIR 234||Jam CA||06/04/2011||CaseSearch Entry|
|Considered||Woodall v R||(2005) 72 WIR 84||Barb CA||29/11/2005||CaseSearch Entry|
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