NO. CA 142/2006
J /HOFF, J
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
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.
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.
– 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.
NO.: CA 142/2006
THE HIGH COURT OF NAMIBIA
In the matter between:
TAUKUHEKE HAIHAMBO APPELLANT
Heard on: 2007.04.27
Delivered on: 2009.04.17
J:  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
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.
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.
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.
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.
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.
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
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.
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.
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
appellant had prior to his appearance in court (on 8 July 2004) only
been identified by the complainant by means of a photograph.
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.
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:
reliability of any identification that is made from a photograph …
rests to a large extent … on the number of photographs exhibited to
the witness …
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.”
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
considering photo-identification two questions arose. Firstly, was
the identification proper, and secondly, was the evidence reliable.
(supra) at 255 (d) ).
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.
it is accepted that there was nothing improper about the photo
identification then the second question must still be considered.
depends on a number of factors which may include the following:
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).
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
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
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.
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.
respect of the photo identification Didcott J referred in Shandu
(supra) to a passage in South African Law of Evidence 4th
ed. at 618 by Hoffmann and Zeffert where the following appears:
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.”
this Didcott J added at 83 h – i:
then, may one add, will his identification in the courtroom of the
person standing trial.”
Court in Shandu referred to a passage in R v Dwyer; R v
Ferguson  2 KB 799 where Lord Heward remarked:
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.”
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.
would however be prudent to arrange an identification parade even in
a situation where a witness has already identified a suspect in a
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.
v Calvin Liseli Malumo and 119 Others CC 32/2001 unreported
Namibian High Court judgment delivered on 10 February 2005)
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.”
356 b – d:
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.”
is well established that it is necessary to approach the evidence of
dock-identification with considerable caution.
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).
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
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).
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
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.
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.
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 ?
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.
reliability of the conclusion remains untested if the test itself was
not properly conducted.” (Chitate
(supra) at 693 A).
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.
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.
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
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.
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 .
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.
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.
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.
my view, for the aforementioned reasons the appeal should succeed.
the result the following order is made:
The conviction and sentence are set aside.
BEHALF OF THE APPELLANT:
LENTIN, BOTMA &
VAN DEN HEEVER ATTORNEYS
ON BEHALF OF THE RESPONDENT:
MR D M LISULO
by: OFFICE OF THE PROSECUTOR- GENERAL