IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Confirmation case
number 423 of 2002
REPUBLIC
Versus
MABVUTO MCHOTSENI
In the Second
CORAM: DF MWAUNGULU (JUDGE)
Kalaile, Senior State
Advocate, for the state
Defendant,
present, unrepresented
Nthole,
official court interpreter
Mwaungulu,
J
JUDGEMENT
The judge who reviewed
this matter set it down to consider the conviction. The Mwanza Second Grade
Magistrate convicted the defendant of the offence of breaking into a building
and committing a felony therein. Breaking into a building and committing a
felony therein is an offence under section 311 of the Penal Code. The lower
court sentenced the defendant to four years imprisonment. The judge, and Ms
Kalaile, Senior State Advocate, appearing for the state, agrees, thought,
correctly in my judgment, the conviction was unsafe. The prosecution relied on
the visual identification of the defendant by a prosecution witness.
In the lower court the
states case was essentially that in the night of
The lower court
rejected the defendant’s alibi. The lower court then went at length to consider
the evidence on the identification of the defendant by the complainant. I
reproduce what the lower court said when evaluating the prosecution evidence of
identification:
“Now when this court looks at the
prosecution evidence, the first prosecution witness said that she has been
seeing the accused before the incident. She said that during the material night
she could not make any mistake about the identity of the since the accused did
not mask his face although he had put on his usual heavy hat. Further, they
struggled for about five minutes while lights were on. The complainant also
gave full details of clothes that the accused had put on. The court is aware
that clothes could be similar but faces are very identical even if one is sick
or drunk. In these circumstances, there is no reason to think that the first
prosecution witness made a wrong identity of the accused.”
I think the judge who
reviewed this matter meant to test the conviction because of this lower court’s
reasoning. When a matter, as this one does, turns on the visual identification
of a defendant by prosecution witnesses, the court has to be wary of
miscarriages of justice denominated by the nature of the evidence before it.
Most miscarriages of justice result from mistaken and wrong identifications.
The difficulties for a court are to find an approach that ensures the guilty
are convicted and the innocent absolved. This Court has for some time followed
the guidelines in R v Turnbull [1977]
Q B 224: see Chapingasa v Republic [78-80]
9 MLR 414; Bonzo v Republic Crim. App.
No. 89 of 1996, unreported; and Republic
v Sopondo conf. Cas. No. 788 of 1996, unreported. All these decisions,
including R v Turnbull, have been
approved by the Supreme Court of Appeal in Sanudi
v Republic MSCA Crim. App. No 10 of 2000.
Essentially, a trial
court faced with a prosecution based on visual identification of a defendant by
prosecution witnesses must do three things. First, the trial court must warn
itself or, where sitting with a jury, the jury about the need for caution
before convicting on such evidence. Secondly, the trial court must direct
itself or the jury to consider closely the circumstances in which the
identification is made:
“How long did the witness have the
accused under observation? At what distance? In what light? Was the observation
impeded in any way, as for example, by passing traffic or a press of people
? Had the witness ever seen the accused
before? How often? If only occasionally, had he any special
reason for remembering the accused? How
long elapses between the original observation and the subsequent identification
to the police? Was there any material
discrepancy between the description of the accused given to the police by the
witness when first seen by them and his actual appearance? If in any case, whether it is being dealt
with summarily or on indictment, the prosecution have reason to believe that
there is such a material discrepancy they should supply the accused or his
legal advisers with particulars of the description the police were first
given. In all cases if the accused asked
to be given particulars of such descriptions, the prosecution should apply
them. ” (R
v Turnbull )
Finally, the court should consider the
specific weakness in the identification evidence. This pedantry considerably
reduces the risks of miscarriage of justice inherent in this nature of
evidence.
The
lower court considered the circumstances in which the identification occurred.
Certainly, the court did not warn itself in the manner suggested. The trial
court, obviously, need not use any form of words. It suffices, in my judgment,
if words are used which show that the trial court alerted itself to the danger
of acting without caution. It is in this respect that the lower court’s
reasoning quoted earlier is wanting. The lower court’s reasoning is further
deficient in considering the weaknesses posed by the identification evidence.
The lower court seems to have assumed the credibility question. Of course, the
defendant was not masked. The lower court should have considered whether the
defendant could, in those circumstances, have gone unmasked. The Privy Council
in Beckford and Others v R ( ) 97 Cr. App. R 409, a case the Supreme Court
of Appeal cited in Sanudi v Republic, suggests
that the credibility question is just as important:
“The first question for the jury is
whether the witness is honest. If the
answer to that question is yes, the next question is the same as that which
must be asked concerning every honest witness who purports to make identification,
namely, is he right or could he be mistaken?
Of course no rule is absolutely
universal. If, for example, the witness’s
identification evidence is that the accused was his workmate whom he has known
for 20 years and that he was conversing with him for half an hour face to face
in the same room and the witness is sane and sober, then, if credibility is the
issue, it will be the only issue. But
cases like that will constitute a very rare exception to a strong general
rule.” (R v Turnbull)
The lower court relied heavily on the
complainant’s evidence of recognition. Even there, there is need for a warning:
“Recognition may be more reliable than
identification of a stranger; but even when the witness is purporting to
recognize someone whom he knows, the jury should be reminded that mistakes in
recognition of close relatives and friends are sometimes made.” (R v Turnbull )
This
was a case where the defendant’s defense is that he was not at the scene of the
crime. Where the defendant admits being at the scene of the crime and only
questions association with a crime must be distinguished from situations where
the defendant questions the identification because he was not at the scene of
the crime. The court must be careful not to think that by rejecting the alibi
defense the defendant must be the one identified by the prosecution witness.
Yet the lower court seems to have thought so, at least from what was said when
dismissing the defendant’s alibi:
“In the accused’s defense it appears he
would like this court to believe that because he spent much of his night at the
tavern and thereafter went to the house of Elube near Mwanga Mosque to finish
the remaining four night hours, therefore, he could not have time to go to
Eliya village to commit the offence.”
A trial court must not think that rejection of
a defendant’s alibi establishes the defendant’s guilt. There are many reasons why
a defendant may want to raise an alibi:
“Care should be taken by the judge when
directing the jury about the support for an identification which might be
derived from the fact they have rejected an alibi. False alibis might be put forward for many
reasons; an accused, for example, who has only his own truthful evidence to
rely on may stupidly fabricate an alibi and get lying witnesses to support it
out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine
mistakes about dates and occasions like any other witness can. It is only when the jury is satisfied that
the sole reason for the fabrication was to deceive them and there is no other
explanation for its being put forward can fabrication provide any support for identification
evidence. The jury should be reminded
that proving the accused has told lies about where he was at the material time
does not by itself prove that he was where the identifying witnesses says he
was.” (R v Turnbull )
The lower court rejected the alibi because the
defendant did not call a certain witness. The record however shows that the
defendant wanted to call the particular witness. It is only that the defendant
failed to trace the witness. The witness the defendant found testified in the lower
court. The particular witness was vital to the defense. Of course, the
defendant’s failure to call such a witness would have undermined the alibi
defense. Failure to call a material and available witness is fatal to a party’s
case. Here the defendant wanted to call the witness only that she was not
available. This could not be a basis for deciding against him.
The conviction is unsafe. I set it aside. I
also set aside the sentence the lower court passed against the defendant.
Made in open court this
D F Mwaungulu
JUDGE