The
appellant was convicted on one Count of theft as defined in section
113(1) of the Criminal Law (Codification and Reform) Act [Chapter
9:23]….,.
This
matter raises the single issue of the sufficiency of evidence by a
single witness in a criminal trial. What is the probative value
attached to such a witness when he testifies in a case in which his
interest looms large? Pointedly, that is also the only ground of
appeal succinctly raised by the appellant.
The
facts upon which the conviction was based were as follows;
The
complainant boarded a Dzivaresekwa-bound commuter omnibus. He sat in
the front passenger seat. Between him and the driver was a conductor.
He was asked to close the door as the bus took off at high speed.
There were other passengers inside the bus. After a short distance,
which the complainant gave as 200m, he was told to disembark as the
bus was no longer going to Dzivaresekwa. He did as ordered. Upon
disembarking he realised that he had been relieved of his wallet.
Immediately, he got onto the next commuter omnibus and a car chase
involving the two omnibuses followed. The former commuter omnibus
evaded the latter. The complainant gave up the chase and went to make
a police report at Dzivaresekwa Police Station near his home. Police
there advised him to lodge his report with Kuwadzana Police Station.
He went home and changed his clothes. Later, he was recalled to his
place of employment. He decided to make a police report at Kuwadzana
Police Station on his way back to work. As he walked along the road,
he then saw an omnibus which he flagged down. The appellant was the
conductor occupying the same seat as did his assailant a few hours
previously. He announced that the appellant had stolen from him and
effected a citizen's arrest. Police on patrol nearby came and
picked the appellant on these charges. He repeated this evidence
during trial.
No
other witness was called by the State.
The
learned trial magistrate found that there were inconsistencies in his
testimony but went on to convict on the evidence of a single witness.
The
Law Regarding Single Witness Evidence
The
entire State case against the accused may rest upon the evidence
given by a single State witness. This may be because the State has
been able to produce only one witness against the accused.
Alternatively, the State may have called more than one witness but
the only evidence on which the guilt of the accused is going to
depend is that of one witness alone. This situation has been referred
to as a "boxing ring" situation because the outcome of the
"contest" hinges on which of the two contestants is
believed, namely, the State witness or the accused.
With
crimes, other than perjury and treason, the court may be entitled to
convict an accused on the basis of the un-corroborated evidence of a
single, competent, and credible State witness: section 269 of the
Criminal Procedure and Evidence Act [Chapter 9:07].
There
is obviously a risk which attaches to convicting the accused on the
basis of the uncorroborated testimony of a single witness. There is a
scarcity of evidence in the case and the testimony of the witness is
the sole proof of the accused's guilt. In this situation, the danger
arises of poor observation, faulty recollection and reconstruction of
evidence after the event, bias, and any other risk that the
circumstances of the case suggest. Before the court relies on such
evidence, it must be satisfied that the quality of evidence must make
up for the lack of quantity. It is recognised that corroboration is
regarded by many as a cornerstone of the criminal justice system. It
is perceived to be an important check which helps to ensure, so far
as practicable, that miscarriages of justice are kept to a minimum.
Sufficiency
of evidence is the amount of evidence required for a conviction. This
is a matter of law. It is not concerned with whether the evidence is
truthful or reliable. There may be sufficient evidence for a
conviction, yet the judge or jury may choose to acquit an accused
because of the quality of that evidence.
For
a person to be convicted of a crime there must be:
(a)
At least one source of evidence, e.g. the testimony of a witness,
that describes the commission of the crime and points to the accused
as the perpetrator; and
(b)
An additional source of evidence, e.g. the testimony of at least one
other witness, which confirms or supports the first source in respect
of each of these two essential or crucial facts, i.e. that the crime
was committed and that the accused was the perpetrator.
The
sources may consist of direct (eyewitness) evidence or indirect
(circumstantial) evidence.
The
requirement for corroboration
Corroboration
is biblical in origin; its roots being found in references in both
Old and New Testaments to a fact needing to be established by two or
more witnesses. The purpose of the requirement is to protect an
accused from being convicted on the basis of a single witness who may
be either fallible or dishonest.
HUME
states:
"No
matter how trivial the offence and how high so ever the credit and
character of the witness since the law is averse to rely on his
single word in an inquiry which may affect the person, liberty or
fame of his neighbour; and rather than run the risk of such an error,
a risk which does not hold when there is concurrence of testimonies,
it is willing that the guilty should escape."
The
classic statement on the principle of corroboration comes from a
civil case of O'Hara v Central SMT Co 1941 SC 363 LP (NORMAND)…,;
"Corroboration
may be by facts and circumstances proved by other evidence than that
of a single witness who is to be corroborated. There is sufficient
corroboration if the facts and circumstances proved are not only
consistent with the evidence of the single witness but more
consistent with it than with any competing account of the events
spoken to by him. Accordingly, if the facts and circumstances proved
by other witnesses fit in to his narrative so as to make it the most
probable account of the events, the requirements of legal proof are
satisfied."
The
requirement for corroboration was re-stated more recently in Fox v HM
Advocate 1998 JC 94 LJG (RODGER)…, in the following, rather
different, terms:
"Corroborative
evidence is…, evidence which supports or confirms the direct
evidence of a witness…,. The starting point is that the jury have
accepted the evidence of the direct witness as credible and reliable.
The law requires that, even when they have reached that stage, they
must still find confirmation of the direct evidence from other
independent direct or circumstantial evidence…,. The evidence is
properly described as being corroborative because of its relation to
the direct evidence: it is corroborative because it confirms or
supports the direct evidence. The starting point is the direct
evidence. So long as the circumstantial evidence is independent and
confirms or supports the direct evidence on the crucial facts, it
provides corroboration and the requirements of legal proof are met."
In
R v Mokoena 1956 (3) SA 81 (A)…, it was laid down that the
un-corroborated evidence of a single witness should only be relied
upon if the evidence was clear and satisfactory in every material
respect. Slight imperfections would not rule out reliance on that
evidence but material imperfections would. The court stated that
single witness evidence should not be relied upon where, for example,
the witness had an interest adverse to the accused, has made a
previous inconsistent statement, has given contradictory evidence or
had no proper opportunity for observation.
However,
in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A), the
Appellate Division stated that there was no rule of thumb to be
applied when deciding upon the credibility of single witness
testimony. The court must simply weigh his evidence and consider its
merits and demerits. It must then decide whether it is satisfied that
it is truthful, despite any shortcomings, defects or contradictions
in that testimony. The approach adopted in the Sauls case was
followed in the case of Nyabvure SC23–88. See also Worswick v State
SC27-88, S v Mukonda HH15-87, S v Nemachera SC89-86 and S v Corbett
1990 (1) ZLR 205 (S).
BECK
JA, in his article in 1986 Vol 1 No.1 Prosecutors Bulletin…, says
that in assessing the quality of the single witness' evidence, to
decide whether the accused should be convicted on the basis of this
evidence, the court should be most attentive to the nature of the
witness, looking at his apparent character, his intelligence, his
capacity for observation, his powers of recall, his objectivity and
things like that. The evidence should be carefully weighed against
the objective probabilities of the case and against all the other
evidence which is at variance with it. The court must have rational
grounds to conclude that the evidence of the single witness is
reliable and trustworthy and is a safe basis for convicting the
accused.
Thus,
although an accused can be convicted on the basis of the
uncorroborated testimony of a single, competent, and credible State
witness, the court must assess, very carefully, the credibility and
reliability of such a witness to see whether it is safe to convict on
the basis of his testimony alone. The courts have pointed out that
proper investigation of criminal cases will usually uncover
corroborating evidence and that it is seldom necessary to rest the
entire State case upon single un-corroborated testimony. The courts
have exhorted police officers and prosecutors not to be content with
the production of evidence from a single witness. However, where it
appears to a court that there are other witnesses who may be called,
it has the power to call these witnesses itself in appropriate cases.
In
S v Musonza & Ors SC217–88, the Supreme Court stated that, as a
general rule, it is undesirable to rely solely and entirely on the
evidence of the complainant, particularly in assault cases, and, more
particularly, where there are counter-allegations of provocation,
self- defence or justification in one form or another. The
complainant, in such cases, has a clear bias and a reason to place
himself in a favourable light and the accused in an unfavourable
light.
In
S v Tamba SC81–91, the Court stated that in assault cases, where
there are other witnesses to the incident in addition to the
complainant, these witnesses should be called and the case against
the accused should not be left to rest upon the testimony of the
complainant alone. It is wrong to deal with such cases as if they
were a "boxing match" between the complainant and the
accused. These two protagonists should not, as it were, be thrown
into the ring with the magistrate as referee, who, at the end of the
bout, having awarded points for demeanour and probability, would name
the winner (who would usually be the complainant). It was even worse
if the magistrate is, as often seemed to be the case, a biased
referee who worked on the unspoken assumption that the police would
not have charged the accused if he was not the guilty one. This
approach, said the Supreme Court, was dangerous, especially in
assault cases where almost invariably the parties give conflicting
versions of what was the cause of the fight and often both versions
are partially untrue or exaggerated. Without evidence from
bystanders, it was almost impossible to determine which version of
the facts was the true one.
In
S v Zimbowora SC07–92, the appellant had been convicted of three
counts of contravening the Labour Relations Act. The State case had
rested entirely on the evidence of the complainant. On appeal, the
Supreme Court said that although the trial court was entitled to
convict the appellant on the single evidence of the complainant, it
was necessary for such evidence to be clear and satisfactory in every
material respect. As the complainant was a witness with an interest
to serve, the trial court was not only required to approach her
evidence with caution but should also have sought corroboration of
her evidence. The conviction was set aside by the Supreme Court as
the complainant's evidence was not satisfactory in all material
respects and no evidence was led to corroborate her assertions.
In
S v Nduna & Anor HB48–03, it was held that where a conviction
relies on the evidence of a single witness, discrepancies in the
witness's evidence are not necessarily fatal. The discrepancies
must be of such magnitude and value that it goes to the root of the
matter to such an extent that their presence would no doubt give a
different complexion of the matter altogether. The fact that the
single witness is himself guilty of some unlawful conduct does not
make him an accomplice in the crime which is charged. Where the
accused, who were policemen, arrested and robbed a person who was
crossing the border illegally, that person was not an accomplice.
The
present case demonstrates all the reasons why corroboration is
required in criminal trials more acutely than the above cases. The
following features stick out like a sore thumb:
(i)
The complainant only had a fleeting encounter with his assailants;
(ii)
There was virtually no opportunity for observation of any features of
the “thief”;
(iii)
No particulars of the commuter omnibus was recorded during the chase;
(iv)
No reason was given for the failure to call the driver of the
pursuing omnibus;
(v)
No description is given by the complainant, to the police, of his
assailant upon making his initial report at Dzivaresekwa Police
Station;
(vi)
The possibility of an honest but mistaken identification of both the
appellant and his omnibus
was
not eliminated.
The
complainant clearly believed that the approaching omnibus was the
same omnibus in which the crew which robbed him were using. The court
a quo did not demonstrate how it had applied the cautionary rule so
as to render the conviction safe and reliable as required by section
269 of the Criminal Procedure and Evidence Act [Chapter 9:07].
In
the result, the conviction remained unsafe. It is therefore set aside
and the sentence imposed consequent to the conviction is hereby
quashed.
