REPORTABLE

CASE NO. CA 142/2006

SUMMARY:

DIININENI TAUKUHEKE HAIHAMBO APPELLANT

versus

THE STATE RESPONDENT

MAINGA, J /HOFF, J

2009/04/17

EVIDENCE: Identification by means of a photograph – practice of investigating officers to show photographs of suspects to eye witnesses where those suspects are still at large – the purpose of this – to find leads or confirm existing suspicions – the primary aim in such a situation is not to collect evidence later to be presented in court, but to promote the investigation of crime.

Attendant pitfalls of photo-identification parade – the reliability of any identification made from a photograph rests to a large extent on the number of photographs exhibited to the witness; photo-identification parade can scarcely duplicate or emulate the conditions of an identification parade; witness is not confronted with a line-up where the suspect gets studied in the company of persons resembling him in countenance, complexion, physique, age and general appearance – instead photographs are produced of various suspects whose features may differ markedly, one alone looking like the individual whom the witness saw at the time; perusal of photographs not governed by settled procedures or subject to strict control of an identification parade, procedures and controls that have specifically been designed to insulate the witness from influence and suggestion; photo-identification by comparison is private, no safeguards exist against prompting.

Because all external guarantees postulated for a regular identification would sometimes be absent such evidence had to be carefully and even sceptically approached, Courts must be alive to dangers of conscious collusion and unconscious influencing.

Considering photo-identification two questions arise, firstly was the identification proper, and secondly, was the evidence reliable.

Preliminary identification by means of a photograph might detract from eye-witnesses’s subsequent identification of the accused during an identification parade or during evidence given in court.

Prudent to arrange an identification parade even in a situation where a witness has already identified a suspect in a photo-identification.

Dock-identification – per se not inadmissible depends on the circumstances of each case what weight a court should attach to such identification – must be approached with caution.

Voice – identification – grounds upon which witness makes identification should be thoroughly investigated e.g. what was there about the voice that made witness sure it was voice of accused person ? did it have a timbre of peculiarity which set it apart from that of others ?; were the words spoken in a loud or soft voice (this would affect the opportunity of making an accurate identification); where there other sounds which might have blurred one’s hearing ?

The purpose of such an investigation or other tests conducted, is to discover whether the witness’s conclusion (i.e. that it was the voice of the accused person), is reliable.

CASE NO.: CA 142/2006

IN THE HIGH COURT OF NAMIBIA

HELD AT WINDHOEK

In the matter between:

DIININENI TAUKUHEKE HAIHAMBO APPELLANT

versus

THE STATE RESPONDENT

CORAM: MAINGA, J et HOFF, J

Heard on: 2007.04.27

Delivered on: 2009.04.17

APPEAL JUDGMENT:

HOFF, J: [1] The appellant was convicted in the Regional Court sitting at Windhoek of the crime of robbery (with aggravating circumstances), and sentenced to a period of ten years imprisonment of which 3 years imprisonment were suspended on certain conditions

The appellant’s defence was an alibi.

[2] The events which occurred at the house of the complainant and which were not in dispute were as follows:

On 6 November 2001 about 20h00 the complainant arrived at home from work. He was walking towards the sittingroom when he saw some of his belongings (laptop, computer and duvet) laying on the floor. He realized that something was wrong and was about to retreat when someone appeared from inside his house pointing a fire-arm at him saying to him “You speak, I shoot.” He was ordered to enter his house and inside his house he observed two additional male persons. All three of them started to assault him and they were all armed with pistols. He pleaded with them not to kill him. His two brothers were then also brought into the room from a toilet. He was able to convince his attackers that he would not call the police and that they could take whatever they wanted to take as long as they didn’t kill anyone of them. A number of goods including cash of N$700.00 were removed from his house, and the attackers used his motor vehicle to drive away. He immediately reported the incident to the police. At about midnight the police informed him that they had recovered his motor vehicle. He went with the police to a certain house in Okuryangava (or Babylon) where he identified his motor vehicle, and later he identified a number of his belongings discovered inside a house which had earlier that evening been removed from his house.

[3] The next day at the police station he was given a photo album and he subsequently identified the appellant as the person who first confronted him just outside the entrance to his house.

[4] Complainant testified that he spent about ten minutes in the company of his assailants the previous evening. It was not disputed that the lights outside the house as well as those inside the house were switched on prior to the robbery. Complainant described the appellant in Court as the one having a beard and being without hair (bald) and that he would never forget the face of the appellant.

[5] It was conceded by Mr McNally who appeared on behalf of the appellant that the evidence presented by the State proved the commission of robbery with aggravating circumstances and that the only question to be determined was whether the appellant was one of the robbers.

[6] It was submitted by Mr McNally that the identification of the appellant in Court was of severely limited value because a photograph of appellant was shown to complainant by the police prior to complainant testifying in Court.

Furthermore no evidence was led under which circumstances complainant saw the photograph. It was submitted that the only identification of the appellant by the complainant was by way of dock-identification and that dock-identification itself is just as inadmissible as the answer to a leading question since it carries no weight. It was further submitted that complainant was shown a photograph of the appellant and that the complainant had testified not from a recollection of his attacker’s face but from a photograph which had subjectively influenced his identification

[7] The accused was arrested on 28 November 2001 and the trial commenced on 8 July 2004. It is clear from the record that the complainant at no stage gave any description of the appellant. It is also common cause that no identification parade had been held after the arrest of the appellant. It is also not disputed that since the evening of the incident on 6 November 2001 until the day the trial commenced on 8 July 2004 the complainant never laid eyes on the appellant.

It is further common cause that although according to the testimony three persons had been involved in the armed robbery the appellant was the only person who had been confronted by the complainant in court.

[8] The only evidence presented by the State in support of the charge of armed robbery was the evidence of the complainant and the evidence of a woman who had been one of the inhabitants of the house in which the property of the complainant had been discovered subsequent to the armed robbery.

[9] The appellant had prior to his appearance in court (on 8 July 2004) only been identified by the complainant by means of a photograph.

[10] There is nothing wrong with the practice of investigating officers to show photographs of suspects to eye witnesses where those suspects are still at large. The purpose of this would be to find leads or to confirm existing suspicions. The primary aim in such a situation is not to collect evidence later to be presented in court, but to promote the investigation of crime.

[11] There are however attendant pitfalls to such photo-identification parade. In S v Shandu 1990 (1) SACR 80 (N) Didcott J explained this at 84 d – h as follows:

“The reliability of any identification that is made from a photograph … rests to a large extent … on the number of photographs exhibited to the witness …

No less important is the … fairness with which they are presented. And here we strike the difficulty that their presentation can scarcely duplicate or emulate the conditions of your average identification parade. The witness is not confronted with a line-up where the suspect gets studied in the company of persons resembling him in countenance, complexion, physique, age and general appearance, that very resemblance and the test it sets the witness in telling him apart from them. Instead photographs are produced of various suspects whose features may differ markedly, one alone looking like the individual whom the witness saw at the time. Nor is the perusal of such photographs then governed by the settled procedures or subject to the strict control of an identification parade, procedures and controls that have specifically been designed to insulate the witness from influence and suggestion. The occasion by comparison is private. No safeguards exist against prompting. And any that occurs seem unlikely to come to light, since such will be known only to the policeman guilty of and the witness assisted by it, neither of whom may feel inclined to admit so much.”

[12] In S v Moti 1998 (2) SACR 245 at 255 c – d Nienaber JA cautioned that because all the external guarantees postulated for a regular identification parade would sometimes be absent such evidence had to be carefully and even sceptically approached, and that Courts must be alive to the dangers of conscious collusion and unconscious influencing.

In considering photo-identification two questions arose. Firstly, was the identification proper, and secondly, was the evidence reliable.

(Moti (supra) at 255 (d) ).

[13] It is impossible to glean any answers in respect of these two questions from the evidence of the complainant. The complainant was the only witness who mentioned in his testimony the photo identification. The police officer who provided him with the photo album was not called to testify neither was the investigation officer called to testify. It is in any event not clear who the police officer was who provided the complainant with the photo album.

Even if it is accepted that there was nothing improper about the photo identification then the second question must still be considered.

Reliability depends on a number of factors which may include the following:

“the credibility of the eye-witness himself and of any other person who attended the photo-identification; whether the latter was the investigating officer or part of the investigating team; the opportunity which the eye-witness had to observe the suspect during the commission of the crime; whether he had previously given a description of the suspect to the police, which corresponded with the photograph; where, by whom and under what circumstances the photograph of the suspect was shown to the eye-witness; what his instructions were, and in particular whether he was informed that a photograph of the suspect would definitely be, or might possibly not be, amongst the photographs; whether the witness was alone when he made the identification or whether he was in the presence of other potential witnesses, the nature and clarity of the photograph of the suspect; whether a photograph of the suspect only was shown to the eye-witness and, if not, the number of other photographs which were displayed with that of the suspect; the comparability of the other photographs shown to the eye-witness with that of the suspect; and whether the photographs which were shown to the eye-witness (of the suspect and of other persons) were still available and placed before the Court, so that the Court might form its own impression of and assess the comparability thereof.”

(See Moti (supra) p 255 e – h. Quoted from the headnote).

[14] The Court (in Moto (supra) at 255 i – j) held that the possibility existed that a preliminary identification by means of a photograph might detract from the eye-witnesses’s subsequent identification of the accused during an identification parade or during evidence given in Court since the identification by the eye-witness might be influenced to such an extent by the photograph previously shown to him, that he testified about the photograph instead of about the events. Whether it would have such a detrimental effect would depend upon the particular circumstances of each case.

[15] If one in casu, has regard to the reliability of the photo-identification by reference to the relevant factors (referred to (supra) ) the only relevant factor would be the opportunity the complainant had to observe his assailant during the commission of the crime. This factor however must be considered having regard to the following factors: the complainant saw his assailant the first time (for a period of approximately 10 minutes) during the robbery; the second time he saw the appellant in court in the dock; he never gave any description at any stage to any police officer (this should have been easy since he described his assailant in court as the one sporting a beard and being bald); there is no evidence that the complainant viewed more than one photograph; there is no evidence that the complainant had been alone when he was presented with this photo album; there is no evidence of any safeguards against the possibility of influence or suggestion at the stage a photo or photos were shown to the complainant; and there is no evidence what instructions were given when the photo album was given to the complainant.

[16] The argument that it was too much of a coincidence that the complainant could have identified the appellant on a photograph who was subsequently proved to be the owner of a house in which the stolen property of the complainant had been found the same evening of the incident, and therefore the appellant must have been involved in the robbery, is certainly an attractive argument.

[17] However in my view this argument must be considered subject to two factors. Firstly, the fact that the photo identification was flawed and secondly the fact that the complainant for the first time since the incident identified the appellant when he found himself in a compromising position alone in the dock in court.

[18] In respect of the photo identification Didcott J referred in Shandu (supra) to a passage in South African Law of Evidence 4^th ed. at 618 by Hoffmann and Zeffert where the following appears:

“In the course of their investigations the police often have to show photographs of suspects to potential witnesses, but this practice may impair the value of the witness’s subsequent identification. In particular, if the witness is shown only a single photograph, his identification is worth almost as little as if he had been shown the accused and asked “Is this the man?” The proper practice is for the witness to be asked to pick out the alleged criminal from a number of photographs. Once he had done so, however, the value of his evidence must depend almost entirely upon his selection of the photograph, and the fact that he later picks out the accused at an identification parade will not carry the matter much further.”

[19] To this Didcott J added at 83 h – i:

“Nor then, may one add, will his identification in the courtroom of the person standing trial.”

[20] The Court in Shandu referred to a passage in R v Dwyer; R v Ferguson [1925] 2 KB 799 where Lord Heward remarked:

“The fair thing is … to show a series of photographs and to see whether the person who is expected to give information can pick out the appropriate person. And where that process has been gone through no matter with what care, it is quite evident that afterwards the witness who has so acted in relation to a photograph is not a useful witness for the process of identification, or at any rate the evidence of that witness for the purpose of identification is to be taken subject to this, that he has previously seen a photograph.”

[21] Where a witness is requested to identify a photo in a photo identification it is important to follow the recommended procedures referred to (supra) since this evidence may become crucial in the consideration whether the identification of an accused person was a proper and reliable identification, and, depending on the particular circumstances of the case, a subsequent identification at an identification parade or in court may lessen the probative value of the identifying witness’s evidence if a photograph had been shown beforehand to the witness.

It would however be prudent to arrange an identification parade even in a situation where a witness has already identified a suspect in a photo-identification.

[22] Regarding the issue of dock-identification this Court has in the past held that dock-identification per se is not inadmissible. It depends on the circumstances of each particular case what weight a court should attach to such identification.

(See S v Calvin Liseli Malumo and 119 Others CC 32/2001 unreported Namibian High Court judgment delivered on 10 February 2005)

[23] This same view has been explained by Leach J in S v Matwa 2002 (2) SACR ECD 350 at 356 i – 355 j:

“… the question in issue is not the admissibility of dock identification but the evidential value to be placed thereon. Where a witness identifies an accused in the dock, it forms part of the evidential matter upon which the case must be decided and I see no reason in principle to exclude it solely due to it having been done in court.”

and at 356 b – d:

“Notwithstanding the dangers attendant thereon, I therefore do not see why a dock-identification should be ignored or that it should be regarded as inadmissible. Interestingly, the position in England appears to be that evidence of dock-identification is legally admissible, although there is a discretion for it to be excluded if the prejudicial effect of the evidence outweigh its probative value (See May (op cit at 371) ). Similarly, in my view dock-identification is admissible in this country, although the weight which is to be afforded thereto will vary depending upon all the circumstances.”

[24] It is well established that it is necessary to approach the evidence of dock-identification with considerable caution.

(S v Mthetwa 1972 (3) SA 766 (A) at 768 A; S v Rico Hoxobeb and three Others CR 68/2001 unreported Namibian High Court judgment delivered on 7 May 2001).

[25] The confidence and sincerity of a witness identifying a suspect are not sufficient, neither is the honestly of the witness identifying a suspect by itself any guarantee of the reliability of such identification.

(See S v Mehlape 1963 (2) SA 29 (A) at 32 F; S v Ndika and Others 2002 (1) SACR 250 (SCA) at 256 f – g; S v Charzen and Another 2006 (2) SACR 143 (SCA) at 147 i – j).

[26] In considering the weight to be attached to the identification of the appellant as one of the assailants of the complainant this Court has regard to the following factors:

Firstly, that the appellant was the only person in the dock at the stage complainant was required to identify his assailants; secondly, no prior identification parade was held; thirdly, the complainant had seen a photograph of the appellant at some stage prior to his identification of the appellant in the dock, and fourthly, and the complainant had at no stage given any description of the appellant to anyone at any stage prior to him pointing out a photograph to the police, neither does any description of the appellant appear in his witness statement.

[27] In my view little weight should be attached to either the photo identification or the dock identification, as appellant being one of the assailants of complainant.

[28] The magistrate in her reasons for conviction stated that the second state witness testimony was that she recognized the voice of the appellant when he greeted her earlier that evening. At that stage she had already gone to bed and her bedroom door was locked.

[29] It has been held that the grounds upon which a witness makes his or her identification should be thoroughly investigated. In R v Chitale 1966(2) SA 690 (RAD) the Court with approval referred to R v Shekekele 1953(1) SA 636 (T) where the Court indicated the matters which should be enquired into where voice identification was in question. Some of the questions, which should be investigated, are the following:

What was there about the voice that made the witness sure that it was the appellant’s voice?; Did it have a timbre or peculiarity which set it apart from that of others?; Were the words spoken in a loud or soft voice? – that would affect the opportunity of making an accurate identification; and was the voice attributed to the applicant the only voice heard or were there other sounds which might have blurred one’s hearing ?

[30] The court a quo did not at all investigate the grounds upon which the second state witness made her identification. The only evidence on record is that the witness and the appellant had been staying together in the same house for a few months. The fact that the witness was behind closed doors is a factor, which could have, influenced her ability to make a reliable identification. The whole purpose of such an investigation or other tests conducted, is to discover whether the witness’s conclusion (i.e. that it was the voice of the accused person), is reliable.

“The reliability of the conclusion remains untested if the test itself was not properly conducted.” (Chitate (supra) at 693 A).

[31] In my view there was no reliable evidence adduced in the Court a quo to conclude that the voice heard by the second state witness was the voice of the appellant and that evidence could not have been relied upon to conclude that the appellant had visited the house in question on the evening of the robbery.

[32] The appellant testified that he had moved during June 2001 from his house in Okuryangava to a house in Ombili and at that stage the second state witness Iyaloo, one Shimanda and one Job remained behind. He testified that he had since then never slept at his house in Okuryangava. He denied being at the scene of the robbery and denied visiting his house in Okuryangava the same night. He further testified that he had shared a room with Shimanda when he stayed in Okuryangava. Idimi Job was called as a defence witness. He confirmed that the appellant moved form the house in Okuryangava during May or June 2001 and that appellant had since then not returned to sleep in the house in Okuryangava. He confirmed that Shimanda had shared a room with the appellant.

[33] The magistrate in the Court a quo correctly reminded herself the identification of a person based on a witness’ recollection of a persons appearance is “dangerously unreliable” and should be considered with due caution. She also expressed her doubts how the accused person before her “was identified in the photo album.”

[34] The magistrate found that she could rely on the evidence presented by the State that the appellant was on the scene of the robbery on the night in question on four factors.

Firstly, that the complainant had been identified by the appellant as the person he had seen at his house; secondly, that it was this person’s photograph which appeared in the photo album provided by the police officers to the complainant; thirdly, stolen property belonging to the complainant was recovered from a house of whom the appellant is the owner, and fourthly, the second state witness testified that she recognized the voice of the appellant when he greeted her at his house in which the stolen goods had been recovered from .

[35] I have shown (supra) that the magistrate in the court a quo erred when she relied upon the first, second and fourth factors in convicting the appellant.

Regarding the third factor there was no evidence led regarding the identify of the person who had brought the stolen items to that house. The magistrate erred when she assumed that the appellant brought those stolen goods to the house. The evidence was (except for the second state witness) that other male persons also occupied the house in which the stolen goods had been found. The magistrate further erred when she regarded the complainant as an independent witness. She should have applied the cautionary rule in evaluating the evidence of the complainant, a single witness and should have considered the possibility of a reasonable possible error in the complainant’s selection of the appellant as one of the robbers.

[36] It is trite law that the appellant had no onus to prove his alibi or his innocence. In addition in my view it has not been shown (during cross-examination) that the appellant’s version was false or that his version was inherently improbable so as to be rejected as false.

[37] In my view, for the aforementioned reasons the appeal should succeed.

[38] In the result the following order is made:

The conviction and sentence are set aside.

__________

HOFF, J

I concur

_____________

MAINGA, J

ON BEHALF OF THE APPELLANT: MR P. McNALLY

Instructed by: LENTIN, BOTMA & VAN DEN HEEVER ATTORNEYS

ON BEHALF OF THE RESPONDENT: MR D M LISULO

Instructed by: OFFICE OF THE PROSECUTOR- GENERAL