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HELD AT LOBATSE
And
Appellant in Person
Ms G Mokhondo for the Respondent
JUDGMENT
MOORE J.A.
SUMMARY
INTRODUCTION
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Second, the magistrate allowed into the record indirect
evidence of a confession to a police officer, when this
should have been excluded; and
BACKGROUND
4. The appellant and two other persons were charged jointly upon a
leave to appeal.
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THE EVIDENCE
eventually charged but there is evidence that four men took part
time when those who worked there were carrying out their
when she heard a big explosion. When she raised her head she
underneath the shelves. She closed the till quickly and tried to
run away. Her sworn testimony, together with that of PW2 and
6. PW2 Keneilwe Julius spoke about a dark tall man who came in
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PW2s account continues:
which the dark tall man had put on, PW2 candidly explained:
people screaming and asking for help. She went out of the
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9. The overall picture which emerges from the totality of the
(b) A tall man with a woollen hat covering his face and
another man who did not have anything on his
face, three men in number.
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(f) Her overpowering him.
(l) Her not seeing what they were doing in the office.
(o) The men going out of the shop and running away.
(p) Her being behind the men until they got into the
office.
10. It is clear from the evidence that the four intruders were not
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compromise the fairness of the parade itself, and the ensuing
11. In cases of this kind where the suspects were strangers to the
is not now in the court file and despite diligent searches, has not
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probability, contained the most accurate recollection by the
13. In cases of this kind also, where the robbers were not previously
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portion of PW4s statement of the 20th September 2005
claimed held her, and whom she testified that she had seen
hair.
15. In The State v Ken Barrow [(1976)] 22 W.I.R. 267, the facts bore
same time of night 9.00 oclock, a gang of four men raided the
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head with a weapon and a quantity of jewellery stolen. In a
the men. This man has a scar on the left side face. He
was that the identification parade was unfair, and that this
questions raised were (i) was the parade unfair? (ii) If it was,
what effect, if any, would this have on the probative value of the
IDENTIFICATION PARADES
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identification. This is how the learned Chancellor expressed
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farce. Richard Beharry could have picked out no one
else. I would not criticise the police over it. It was
probably impracticable to find seven men with similar
scars. But it was a farce nonetheless.
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But I would enquire: Was the difficulty in holding
one really surmountable in the circumstances? When
one considers that the police could have resorted to
the simple expedient of putting pieces of plaster on
the faces of all those on parade, including Joness, so
as to eliminate the one and the only unnatural
characteristic, namely, the scar, I am a little doubtful
whether I can agree with the learned trial judges
reasons that it had not been possible for the police to
conduct a parade because of the impossibility of
finding people resembling Jones. It is all a question
of the experience, common sense and fair-
mindedness of the particular officer conducting the
identity parade...If a parade must be held at all, it
seems to me it is far better that one should be held in
circumstances where identification though a remote
possibility is fair, than in circumstances where it is
both a certainty and unfair. Speaking for myself, I can
well understand what Beharry meant by saying he
had no problem picking out the accused, for it was
made all too easy for him to do so.
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covered the hair of all of the persons participating on the parade,
eliminated.
18. Like Haynes C in Barrow, I too do not criticise the police in this
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the suspect, and what happens at those parades is
highly relevant to the establishment of the truth.
20. Chancellor Haynes then observed two basic principles. First that
the arrest of the suspect. The longer the delay in holding the
on the same parade: and even if, for unavoidable reasons more
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persons participating in the parade where there were two
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proof of identification rests wholly on a brief visual
observation at night by the victim of a crime of
violence during a brief encounter, and an identification
parade held 17 days later was manifestly unfair.
24. The question which the magistrate posed for determination was:
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26. In The South African Law of Evidence by DT Zeffertt, AP Paizes,
under the rubric Fallibility, the authors at the very outset sound a
this way:
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The average witnesss ability to recognise faces is
poor, although few people are prepared to admit that
they have made a mistake. On a question of
identification, therefore, the confidence and sincerity
of the witness are not enough. As Williamson JA has
said:
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on its merits. But where such identification rests upon
the testimony of a single witness and the accused
was identified at a parade which was admittedly
conducted in a manner which did not guarantee the
standard of fairness observed in the recognised
procedure, but was calculated to prejudice the
accused, such evidence standing alone can have little
weight.
the robbery was bright, and that PW4 observed her attacker from
consideration that the attacker did not have anything on his head
identification parade.
29. The contention of the appellant that the parade was unfair was
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Impressed by the testimonies of the officer conducting the
parade and that of PW4, the magistrate was satisfied that there
and which are set out in the excerpt from The South African Law
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a gun which was apparently fired, two of them wearing masks,
and the confusion which ensued as the four bandits menaced the
staff with assaults and demands for money, while customers and
some staff members fled for their lives and others scurried for
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v Turnbull and Others (1976) 63 Cr. App. R. 132;
[1976] 3 All E.R. 549 which guidelines should be
found in all editions of Archbold subsequently to 1976,
which one hopes every chief magistrates library in
Botswana has. This ought to be done especially
when an accused is not represented. The Turnbull
guidelines were followed in R v Weeder (1980) 17 Cr.
App. R. 228, C.A. I think it may be worthwhile if these
guidelines are now repeated in this judgment
substituting, where it occurs, the words judge and
jury by the words judicial officer and himself.
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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 was dealt with summarily or on
indictment, in which the prosecution has reason
believe (sic) that there is such a material
discrepancy they should supply the accused or
his legal advisors with particulars of the
description of the police when first given. In all
cases if the accused asked to be given
particulars of such description, the prosecution
should supply them.
32. When the matter reached the High Court on appeal, the judge
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The evidence of PW4 for example, clearly puts him
squarely at the scene. His face was not covered and
he assaulted this witness with claps during the
robbery. The witness clearly saw him and was able to
easily pick him during the identification parade.
33. Unfortunately the judge of the High Court did not give full
SAVINGS CLAUSE
34. As has been stressed throughout this judgment, the utmost care
witness that the person whom the witness has been called to
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clearly given, there is a continuing and ever present danger that
the witness may very well honestly believe that the person
matter of fact, one of the persons whom the police have gathered
absence of the savings clause, the witness may very well feel
35. In The State v Ken Barrow [1976], 22 W.L.R 267 at page 281 C-I,
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Cranes Law of Unlawful Possession (2nd edn). note (10) p. 156
which reads:
is a matter of some concern that PW4 could testify that she saw
Lesego go into the court yard and that from the court yard she
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went to a motor vehicle to which, presumably, the witnesses
this case makes any note concerning the hair or hairstyles of the
line. In answer to the question you said all of them kept short
hair, and light in complexion, PW4 responded No. you were the
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was visible, and so that the appellant was in no way
That is why in the words of the Judge, PW4 was able to easily
pick him (the appellant) during the identification parade. But the
the parade and his assistants. It states in print that The parade
provides for the NAME, AGE AND ADDRESS (of people in the
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officer conducting the parade which he or she will be best able to
39. In S v Tawanda and Others 2008(1) SACR 613 at 653 [30] b-c,
40. The well meaning question put to PW4 by the officer with
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identified the appellant at the identification parade, as to whether
that the witness was sure. Many decided cases have recognised
are familiar with all the facts of the case might somehow affect
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(ii) The fact that she was the only witness whose
admissible evidence connected the appellant with
the robbery.
44. It is beyond doubt that PW4 also made a statement on the 22nd
parade took place. That was her third statement. It does not
appear in the court file. The only statement made by PW4 which
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45. A more bland, general and unspecific description of the robbers
could hardly have been given. Noteworthy, is the fact that there
hair. However, by the time she came to give her evidence before
46. That evidence, at first blush, would appear to tie in with that of
alleged that she identified the man who was also standing by the
door. She said that man had Rastafarian hair. The man who
was merely also standing by the door, could hardly be the same
man who grabbed her, hit her with a clap and demanded money
of the incident a man who did all these traumatising things to her
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47. Though the appellant was unrepresented, his cross-examination
believably that when one of the robbers pointed a gun at her, she
colour of the gun as she was in shock. The courts below did not
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could not realistically have maintained an icy calm in the face of
the shocking events of that night, and that the quality of her
she observed the actions of the four robbers, the staff and the
judgment:
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51. When therefore, the police invited potential witnesses to attend
not for the purpose of recognition simpliciter, but for the purpose
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were. His evidence regarding the attendance of PW4 at the
54. The officer conducting the parade must ensure that witnesses
The participants and the witnesses may not be in the same room.
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the court is better able to determine whether the parade was
does not by itself connect the appellant with the robbery. The
form does not show that the witness was identifying the appellant
suffers from the same weakness. Despite this fact, the judge of
the High Court found that one witness called Lesego Manji
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supported for the additional reason that this person did not give
57. At page 272 H-I of the Barrow case, Haynes C. articulated the
58. Under this ground of appeal, the appellant points to the evidence
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the submission of the appellant and this ground of appeal
accordingly succeeds.
CONCLUSION
59. There is much that went wrong in the investigation of the robbery
the police which could be corrected with the requisite training or,
accused, PW5 declared that I took a short cut. Short cuts are
60. The short cut which PW5 took was to stage a confrontation
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cited in this judgment will assist in preventing a repetition of the
ORDER
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S.A. MOORE
JUSTICE OF APPEAL
I agree ------------------------------
N.J. McNALLY
JUSTICE OF APPEAL
I agree ------------------------------
J.G. FOXCROFT
JUSTICE OF APPEAL
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