Appeals against convictions for murder were allowed where the court could not be satisfied that the trial judge had given proper directions on identification evidence in summing-up and the remaining evidence against the appellants was not compelling enough to make convictions inevitable.Appeal by defendants convicted of murder from the dismissal of appeals against conviction by the Court of Appeal of Trinidad and Tobago. The appellants were brothers who were convicted of murder in 1988. The Court of Appeal refused their applications for permission to appeal. They then appealed to the Privy Council on the ground that the trial judge had failed to give the jury appropriate directions on how to approach the identification evidence given by N which had played a central role in the case. During the delay before the case was heard in the Court of Appeal the shorthand notes of the judge's summing-up had been lost. The appellants' case was that the summing-up was likely to have contained a misdirection since even after their trial, judges in Trinidad and Tobago had frequently failed to give identification directions complying with R v Turnbull (1977) QB 224 as required by the law of Trinidad and Tobago (Fuller v The State (1995) 52 WIR 424). The issues for the Privy Council were: (i) whether the court should assume that there had been a misdirection; and (ii) whether the proviso in s.44(1) Supreme Court of Judicature Act should be applied.HELD: (1) It was well established that the loss of the transcript of a summing-up was not without more a ground for setting aside a conviction. The appellants had to point to something to suggest that the summing-up contained a misdirection. Fuller v The State demonstrated that as much as five years after the date of the appellants' trial judges were still failing to give the necessary directions on identification required by Turnbull. Therefore it was proper to proceed on the assumption that there might well have been a misdirection in this case and to allow the appeal unless the proviso should be applied. In the present case the other evidence against the appellants fell far short of being so compelling that the jury would inevitably have convicted on it independently of N's identification evidence. The Court of Appeal was wrong to find that the case for the prosecution was overwhelming. The circumstances did not permit application of the proviso.Appeals allowed.

[2003] UKPC 1