The
salient facts were that on 30 July 2003, at about 2130 hours, the complainant,
a medical doctor, was driving his VW Polo Classic motor vehicle along Cecil
Avenue towards Matsheumhlophe. He parked his vehicle outside the gate of 113
Edenfield Road. Whilst waiting for the gate to open, a vehicle parked behind
him. The complainant turned around and saw the driver of the said vehicle point
a pistol towards him. Two of his assailants got out of the vehicle. They opened
his car door and dragged him out of the vehicle. They robbed him of his phone,
wallet and wrist watch. They forced him into the back of their vehicle and
drove away with him. After driving him to an unknown location, they removed his
shoes and dropped him and left. The appellant was arrested on 19 August 2003 at
Bulawayo Central Police whilst visiting detainees at the police station. An
Identification parade was held and the complainant identified the appellant.
The issue,
in casu, is one of identity.
Immediately
after being identified, the appellant raised an objection on the manner in
which the identification parade was conducted. Detective Assistant Inspector
Foto, who conducted the identification parade, noted the appellant's objection
in the following terms -
“Was
identify because of my eye, once saw witness in office.” [sic]
It is the
conduct of the identification parade that is in issue.
It
is trite that to produce reliable evidence, an identification parade must be
carried out fairly. It must be carried out carefully. Judges Handbook, PROF G FELTOE…,. The learned author outlines the following
basic requirements for a fair parade;
“(i)
It must be conducted by an officer who has had nothing to do with the
investigation into the case;
(ii) The
officer conducting the parade should not call the witness to the parade;
(iii) A
sufficient number of persons, say ten, should form the parade;
(iv)
The persons on the parade must be approximately the same build, height and
complexion and they should all wear similar clothing, and, preferably clothing
similar to that worn when the crime was committed;
(v)
The witness must be kept somewhere where he or she cannot see the prisoner
being guarded by police officers or the parade being assembled;
(vi)
The witness should not be told that the suspect is on the parade but should
only be asked if he or she saw the suspect commit that crime is on the parade;
(vii)
The witness must be left to pick out the person he or she saw commit the crime,
if he or she can, without any form of assistance or prompting;
(viii)
The police should not attempt to point out or suggest someone either before or
during the parade;
(ix)
It is also important that the identification parade be held as soon after the
commission of the crime as possible to avoid memory impairment occurring with
the passage of time – Mavunga 1982 (1)
ZLR 63 (S).
In
Goma HH21-93, the court stated that
evidence must be led showing the proper conduct of an identification parade in
accordance with established police procedures with all its safeguards. Unless
these essential requirements are complied with, any evidence of identification
at a parade must not be relied on…., Masawi & Anor HH111-94…,.”
In
casu, the conduct of the
identification parade leaves a lot to be desired.
First,
it was conducted by the Investigating Officer (according to the identification
parade notes which read:-
“Officer
conducting parade: 03939 T D/A/I Tada P…,.
Investigating
Officer: D/A/I Tada…,.”
There
is nothing to show that the identification parade was conducted by D/A/I Foto
in the identification parade notes. This only emerged from the viva voce
evidence of Detective Assistant Inspector Foto. Be that as it may, it is common
cause that the Investigating Officer, Tada, was present during the
identification parade. It is clear that the identification parade was conducted
by the police officers directly involved in the arrest of the appellant and
investigations of the case against the appellant. This is a serious flaw in the
conduct of the identification parade. In view of the objection by the
appellant, the runner, Detective Constable Ndlovu and the witnesses guard,
Detective Constable Samkange should have been called to give evidence. Failure
to call them has resulted in a material break in the chain of evidence.
Further,
the appellant has a distinct defective eye or cataract.
If
the witness, who is a medical doctor, saw and identified the appellant during
the robbery, he would not have missed this feature of his face. If he missed
the cataract because of the hat that the appellant was wearing during the
robbery, then he is unlikely to have identified him during the parade. The complainant confirmed that no other
person had a cataract in the parade.
Further,
the appellant established a possibility that the complainant saw him at the
police station prior to the conduct of the identification parade. When the
appellant cross-examined the complainant (at pages 11-12 of the proceedings)
this is what transpired;
“Q.
Now, if I put it to you that it is the first time when you saw me in handcuffs
and leg irons in the Homicide Offices while you were busy filling in these
forms?
A.
Well I saw several prisoners because I went to that office several times so
it is possible that I saw you.
Q It is
possible you do not deny that?
A. It
is possible you were in the office at the same time.” …,.
At page
15, when asked by the court, the complainant stated:
“Q.
Did you see the accused person between the date of the offence and the date of
the parade? Did you see him at the station?
A. It
is possible that I saw him.” …,.
In
her judgment, the trial magistrate conceded that there were problems with the
conduct of the identification parade. She, however, convicted the appellant on
the basis that if he managed to appreciate that the complainant had seen him
prior to the identification parade, he must be the person who robbed him. In
short, it was inferred that the only inference to be drawn is that he was at the
scene of the robbery. That obviously is not the only inference to be drawn from
that fact. Another simple inference is that when he saw the complainant being
brought to identify him he immediately realized it is the same person he had
met as Homicide Offices earlier on.
With
all these flaws, the evidence of the identification parade is unreliable. There
is no other evidence linking the appellant with the offence.
It
is for this reason that we quashed the conviction and set aside the sentence.
