In
order to deal with these two grounds of appeal, it is necessary to set out the
findings of the trial court and decide, in light of the evidence led in the
court a quo, whether there is merit in these
two grounds.
Evidence
led from no less than five witnesses establishes the following:
Obey
Chiwara, the complainant, told the court that on 10 April 2012, the first
appellant, together with the second appellant, approached their bus at the
Roadport Bus Terminus. The first appellant identified himself as Detective
Kambarami. He was dressed in a suit. He demanded US$2,000= for their bus not to
be impounded. The second appellant was dressed in police uniform. They both
claimed that the bus carried smuggled goods. According to the witness, the
first appellant then produced a firearm from his jacket stating that they were
not joking. The witness, who is a bus conductor of the bus which had just
arrived from Zambia, then handed over US$980= to the two. They drove off in a
white vehicle which had arrived at the scene after one of them had spoken on
his mobile phone. The bus crew and the passengers discussed the incident. It
was decided not to report this incident since, according to the witness, the
two were well-known for this kind of behavior. It was felt they would return
and appropriate action would then be taken. They decided to entrap them. Sure
enough, on 12 May 2012, the duo struck. Except for himself, the rest of the bus
crew was present. He learnt later how these two were driven to the police
station and arrested for the robbery of the 10th of April 2012.
Mafios
Meki, a traveller who was on board the bus on 10 April 2012, when the offence
was committed, stated that the first appellant was dressed in a suit and the
second appellant in a police uniform. They had taken the conductor to the front
of the bus which was lit up by both the headlamps of the bus as well as the
flood lights at the terminus. He had also spoken to the second appellant during
the commission of the offence and therefore had had a good look at him. His
evidence corroborated that of the first witness in that they both confirm that
they each spoke to one or other of the two appellants in a well-lit area. When
he was later summoned to an identification parade, he was able to pick out the
second appellant. He described the features by which he was able to pick out the
second appellant; which features he had taken note of earlier the previous
month.
Another
witness, Caiphas Rino, the bus driver, also confirmed that the two appellants
were the same people who had accosted the bus crew and relieved the conductor
of cash in April 2012 and were arrested a month later when they attempted to
commit the same offence using the same tactics at Roadport Bus Terminus.
Regarding the incident in April 2012, the bus driver described the first
appellant as having been dressed in a suit whilst the second appellant was in
police uniform. He confirmed what Mafios Meki had told the court; that the
second appellant had boasted that he had once had an altercation with the bus
conductor, the first State witness, when they were committing the present crime
in April 2012. He maintained that on the day of their arrest, the two
appellants had been spotted at a service station near Roadport Bus Terminus
called Engen. He had identified them and caused their arrest.
Naboth
Chikomo, a taxi driver who plies his trade around the Roadport Bus Terminus
area testified that on the day, in April 2012, when this crime was committed,
he had identified the first appellant during the commission of the crime. The
first appellant had chased him away on that occasion. He was later called to an
identification parade where he was able to easily pick the first appellant out
and described the features through which he had identified the first appellant.
He disputed the evidence given by the appellants in respect of the manner in
which the identification parade was carried out by the police. His evidence
tallied with that of the police officer who carried out the identification
parade.
Questions
of identification are always difficult. This is the reason why extreme care should
always be exercised when it is proposed to carry out identification parades,
that is, to prevent the slightest hint reaching the witness of the identity of
the suspect. People often resemble each other and it is not uncommon that
strangers are sometimes mistaken for old acquaintances. In S v Dhliwayo and Another 1985 (2) ZLR 101 (SC) it was held
that:
“Where
an identifying witness has been shown to be careful and truthful, it is not
always necessary for the witness to be asked to give details of every feature
by which he identified the accused. Evidence of identification, however, must
be treated with some caution and the reliability of the witness's evidence must
be tested against the cumulative weight of such factors as lighting, visibility
and eyesight, his proximity to the accused: his opportunity for observation,
the extent of his prior knowledge of the accused, the accused's features and
appearance, the result of an identification parade and the accused's evidence.”
In
S v Ndhlovu and Others 1985 (2) ZLR 261 (SC) it was similarly
held that the positive assurance of identification by a single honest witness
was not enough. The court went on;
“The
possibility of a mistake occurring in the identification, especially where the
witness has not known the person previously, demands that the greatest
circumspection should be employed. As WILLIAMSON JA warned in S v Mehlape1963 (2) SA 29 (AD) at 32F-G:
'The
often patent honesty, sincerity and conviction of an identifying witness
remains, however, ever a snare to the judicial officer who does not constantly
remind himself of the necessity of dissipating any danger of error in such
evidence.'
In
similar tone, HOLMES JA, in S v Mthetwa1972 (3) SA
766 (AD) at 768 A-C, remarked with his accustomed lucidity:
'Because
of the fallibility of human observation, evidence of identification is
approached by the courts with some caution. It is not enough for the
identifying witness to be honest: the reliability of his observation must also
be tested. This depends on various factors, such as lighting, visibility, and
eyesight; the proximity of the witness; his opportunity for observation, both
as to time and situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration and suggestibility; the accused's face,
voice, build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by or on behalf of the accused. The list is not
exhaustive. These factors, or such of them as are applicable in a particular
case, are not individually decisive, but must be weighed one against the other,
in light of the totality of the evidence, and the probabilities.
(See
also Aluverino v R
1963 R&N 614 (SR) at 615 I-616 H.) Hence, a cautious approach
is necessitated, not only because a conviction is sought upon the evidence of a
single witness, but also because the identification of an accused person is a
matter notoriously fraught with error. It is an area wherein the potential for
honest mistake looms large.'”
In S v Nkomo 1990 (1) SACR 682…,
McNALLY JA put the issue of identification this way:
“Very
broadly speaking, the judgment of LORD WIDGERY was to the effect that good
identification does not need corroboration or support but poor identification
does. Good identification he defined by examples;
(1)
A kidnapped person kept for many days in the company of his kidnapper, who
identifies him without hesitation months later.
(2)
A suspect person kept under observation and seen by two policemen several
times, identified by them six months later.
(3)
A colleague, known from work for several years, seen clearly stealing a wallet
from a locker.
Such
cases, said LORD WIDGERY, could safely be left to the jury to decide.
On
the other hand, identification is poor 'when it depends solely on a fleeting
glance or on a longer observation made in difficult conditions.' Recognition,
he said, elsewhere in the judgment, 'may be more reliable than identification
of a stranger.' In such cases, corroboration or support (and odd coincidences,
unexplained, can, he said, be regarded as support) should be required.”
The
court a quo, in a well reasoned judgment, set
out how it treated the evidence on identification and concluded that the State
witnesses could be relied upon as truthful and not being mistaken when they
identify the appellants as the culprits. It is important that the State
witnesses had prior knowledge of the two. That is why they resolved not to
report the offence on the day it was committed. They knew that these two, apparently,
had a habit to harass bus crews over unsubstantiated allegations so as to gain
some advantage of sorts. Their predictions proved true as, indeed, the two
appellants struck the following month. It is no coincidence, in my view, that
the first appellant, who described himself as Detective Kambarami, in fact
turned out to be one Kambarami when he was picked out of an identification
parade. This fact lends support to the correctness of the appellants by the
State witnesses. It is also no coincidence that indeed they are police officers
- both of them. Again, this corroborates and confirms the correctness of the
evidence of identification relied upon by the court a quo.
They were known by the taxi driver as well as by the traveller who was present
when the appellants committed this crime.
I
am satisfied that the ever-present danger of honest but mistaken identification
of an accused has been satisfactorily excluded in this case. In the result, the
conviction of the two appellants is unassailable.
The
appeal against conviction is therefore dismissed in its entirety.
