When she was about to take her children to school the deceased’s wife noticed the defendant driving a black car, looking at her, talking, as he pulled up onto the kerb outside her house. She had him in view for a very few seconds through the rear side window of his car and saw the side of his face before he turned to look directly at her. He drove off and she went out, leaving the back door unlocked. The Crown’s case was that the defendant drove back while she was out and a gunman, one of the co-accused, who was employed by the defendant, got out of the car, entered her house and shot her husband dead. The Crown alleged it had been a joint enterprise contract killing arranged by another co-accused who had familial links with the gunman and defendant and the defendant acted as the getaway driver. Almost a year later the deceased’s wife picked out the image of the defendant at a video identification procedure as the man she had seen driving the car. The gunman was identified by a criminal associate from CCTV footage, which was supported by bad character evidence. The defendant and the two co-accused were charged with murder. In their defence case statements the defendant maintained he had been at his place of work at the time of the murder and named a potential alibi witness and the gunman claimed to have called in at the same place of work on the morning of the murder and seen the defendant there. At trial, the Crown contended that the identification of the defendant by the deceased’s wife and the identification of the gunman by the criminal associate were cross-admissible to support its case that the two men had both been correctly identified. It was the defendant’s case that the deceased wife’s identification of him a year after the shooting had been mistaken and unreliable. When summarising the Crown’s case in his summing up the judge told the jury it had said one remarkable feature about the two separate pieces of identification evidence was that although the two witnesses made their identifications to the police independently, each identified a man who was known to the other and at the time of the murder and on the morning of the murder, respectively, said they were in the same place, namely, their place of work. He said the Crown asked them to consider whether it was some awful coincidence or whether it overwhelmingly confirmed the accuracy of the identification evidence given by the two witnesses. He directed them to exercise special caution when considering the identification evidence because an honest impressive witness who was convinced of the correctness of the identification he or she had made could be mistaken and to examine the circumstances carefully in which the identifications were made. He also directed them to consider the pieces of potentially supporting evidence and resolve any issues of fact relating to them before considering whether any of them supported the evidence of identification. The defendant was convicted and appealed against conviction on the grounds (i) that the judge should not have left coincidence to the jury as potential support for the correctness of the deceased wife’s identification of the defendant and there had been a material misdirection, and (ii) the coincidence of the criminal associate’s identification of the gunman could not support the deceased wife’s identification of the defendant because the driver was likely to be known to or connected to the gunman.

On the appeal—