IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE

Court of Appeal Criminal Appeal No. CLCLB-056-10 High Court Criminal Appeal No. CLHFT-000030-09

In the matter between: KEODIRILENG SEGOMOTSO APPLICANT And THE STATE RESPONDENT Appellant in Person Ms G Mokhondo for the Respondent

JUDGMENT

CORAM: MOORE J.A. McNALLY J.A. FOXCROFT J.A. MOORE J.A.

SUMMARY Identification Parade – suspect described as dreadlocked man and/or

man with Rastafarian hair – Parade mounted with appellant as only

man with dreadlocks or Rastafarian hair – Whether parade fairly

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conducted – Conduct of identification parade – Necessity to add

savings clause – That if suspect is not on parade no one else should

be identified – Two suspects on the same parade – Need to increase

number of persons participating in the parade – undesirable that

investigating officer be present during the conduct of the parade or

play any part in making arrangements for the parade – Inadmissibility

of Hearsay – Inadmissibility of completed Police Identification Parade

Form concerning witness who identified appellant at the parade but

who did not give evidence in court.

INTRODUCTION 1. This appeal comes before us following the appellant’s successful

application to this Court for leave to appeal against his conviction

by the magistrate sitting at Letlhakane upon a charge of robbery

contrary to s. 291 as read with s. 292(2) of the Penal Code (Cap

08:01) of the Laws of Botswana.

2. In his ruling upon the application, Kirby J.P. identified three

issues upon which the appellant had a reasonably arguable

case. These are:

“First, there may be some force in the argument that an identification which relied upon the feature of a Rastafarian hairdo was unfair when the line-up contained only one person with such a hairstyle;

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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 Third, there was some reliance on inadmissible hearsay evidence, particularly concerning a second identification parade, at which the applicant was pointed out by a witness who was not called.”

3. In the opinion of the learned Judge President:

“The Court of Appeal will need to consider whether these misdirections taken with the other evidence were such as to lead to a failure of justice.”

BACKGROUND 4. The appellant and two other persons were charged jointly upon a

single count of robbery. Two of the three were acquitted and

discharged by the magistrate. The appellant was not so

fortunate. He was found guilty as charged and sentenced to 10

years imprisonment. He appealed unsuccessfully to the High

Court presided over by Rannowane J. which dismissed his

appeal and subsequently refused him leave to appeal to the

Court of Appeal. Hence his fruitful approach to this Court for

leave to appeal.

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THE EVIDENCE

5. It is common cause that on the night of the 4th September 2005

at about 9 o’clock, the Rainbow Supermarket in Letlhakane

Village came under attack by robbers. Three persons were

eventually charged but there is evidence that four men took part

in the robbery. This was a bold attack upon the premises at a

time when those who worked there were carrying out their

various duties. As PW1 put it, she was attending to a customer

when she heard a big explosion. When she raised her head she

saw that customers were running away. Others were hiding

underneath the shelves. She closed the till quickly and tried to

run away. Her sworn testimony, together with that of PW2 and

PW4, provides a vivid picture of her own state of mind, as well as

the atmosphere which swiftly developed as the four intruders

executed the robbery.

6. PW2 Keneilwe Julius spoke about a dark tall man who came in

and donned a woollen (kupa hat) head piece.

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PW2’s account continues:

“He took out a gun and pointed it at me. I shouted “mme wee!” and ran away. That tall man is accused 1. I do not know his name. When he pointed a gun at me I ran away. Bokani asked what the problem was and I said we were under attack. We ran into decorating cloths. These cloths were inside the shop. I did not see what happened afterwards as I was hiding under the cloths. Bokani threw the money I have given him underneath the table and hid behind the cloths. I do not know where Bokani is. She quit the job.” (sic)

7. Asked in cross-examination about the colour of the kupa hat

which the dark tall man had put on, PW2 candidly explained:

“I cannot remember the colour. I was in a shock.”

8. The prosecution star witness was PW4 Keeme Goitsemang who

was working in the butchery when she heard an explosion and

people screaming and asking for help. She went out of the

butchery and saw three men.

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9. The overall picture which emerges from the totality of the

evidence of the three employees of the supermarket who were

on duty that night is that:

i) The four robbers struck suddenly catching everyone by

surprise. ii) For some part of the time they spent upon the

premises, two of the robbers wore masks.

iii) One of the robbers was armed with a gun.

iv) There was a big explosion. Some of the persons present ran away screaming for help while others took cover under tables or behind decorating cloths in the shop.

v) PW1 and PW2 described themselves as being in

shock.

vi) The premises were bright. Electric lights were on.

vii) The attention of PW4 was divided between:

(a) The sounds of the explosion and of people screaming and asking for help.

(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.

(c) The masked man and another holding

Tshwaragano Tlhalosang.

(d) A third man grabbing her.

(e) Then pulling her to the office.

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(f) Her overpowering him.

(g) Her being hit with a clap and money being demanded.

(h) Her telling the man who demanded money that

she never handled money and only sold meat.

(i) The man leaving her and going to Tshwaragano. (j) The men going into the office.

(k) Her remaining outside the office.

(l) Her not seeing what they were doing in the office.

(m) The men going towards the entrance where the

electricity is sold.

(n) Her not seeing what they took there.

(o) The men going out of the shop and running away.

(p) Her being behind the men until they got into the office.

(q) Seeing the one who held her clearly as he held

her.

10. It is clear from the evidence that the four intruders were not

previously known to the witnesses. This is the reason why the

police, quite properly, decided that an identification parade

should be held. As will be demonstrated presently, the

circumstances surrounding the conduct of that parade gave rise

to a number of serious defects in the process sufficient to fatally

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compromise the fairness of the parade itself, and the ensuing

conviction resulting from it.

11. In cases of this kind where the suspects were strangers to the

witnesses, the initial reports or statements given by the

witnesses to the police assume critical importance. That is why

especial care must be taken by the police in the recording of

such statements. These statements, when the matter is still

fresh in mind, very often taken within a day of the occurrence,

are likely to reflect a chronicle of the things observed by the

witnesses as best he or she can remember them at the time.

Their accuracy is unlikely to be tainted by ex post facto

reconstructions of the relevant events, or by what the witness

may have heard after recording the initial statement.

12. In this context, the statements made to the police by PW4

Keeme Goitsemang warrant close examination. The First

statement made by this witness on the date of the robbery itself

is not now in the court file and despite diligent searches, has not

been unearthed. This is unfortunate. That statement, in all

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probability, contained the most accurate recollection by the

witness of what transpired that night. PW 4’s second statement

was recorded on the 20th September 2005, some 16 days after

the robbery of the 4th September 2005. That statement is likely

to be of vital importance. In cases of this kind, it is important that

statements be taken from potential witnesses on the day of the

occurrence or as soon thereafter as circumstances permit.

13. In cases of this kind also, where the robbers were not previously

known to the witnesses, the police practice is to invite the

witnesses, at the earliest possible opportunity, to give the best

possible description, of which he or she is capable from his or

her own recollection, of the physical features or characteristics of

the suspect including such elements as age, height, build,

complexion, colour of hair and eyes, race and, in particular, any

peculiarities which might help to distinguish the suspect from

other persons of the group to which the suspect belongs. A

description of the clothing worn by suspect at the material time

should be as detailed as the witness is able to give. Against the

above background of what a statement should contain, the

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portion of PW4’s statement of the 20th September 2005

describing the intruders reads:

“I am to state that I am in a position to identify the three gentlemen who were at the shop except the fourth one who is tall as he had covered his face. All the three had short hair and were all light in complexion. They looked young around ages of 20-25 yrs. I can not remember what colour of clothes they were wearing. That is all.”

14. It is to be observed that the above description of the robbers is

peculiarly silent on the features and characteristics of the man

PW4 describes in her testimony as accused 2 and who she

claimed held her, and whom she testified that she had seen

clearly as he held her. Accused 2 is the appellant. Noteworthy

also, is that PW4’s statement to the police makes no mention

whatever of a dreadlocked man or of a man with Rastafarian

hair.

15. In The State v Ken Barrow [(1976)] 22 W.I.R. 267, the facts bore

a striking similarity to those of the instant case. At about the

same time of night 9.00 o’clock, a gang of four men raided the

house of a goldsmith named Beharry who was wounded on the

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head with a weapon and a quantity of jewellery stolen. In a

statement to the police, Beharry said, “I can only identify one of

the men. This man has a scar on the left side face.” He

described the man otherwise as a “short dark negro man.” Some

17 days later Beharry attended an identification parade where he

identified the appellant Barrow.

16. Before the Guyana Court of Appeal, the appellant’s complaint

was that the identification parade was unfair, and that this

unfairness rendered its evidential value nugatory. Two of the

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 on oath at the trial?

IDENTIFICATION PARADES

17. In the Court of Appeal case of State v Ken Barrow [(1976), 22

W.I.R. 267 Chancellor of the Judiciary J.O.F. Haynes made a

comprehensive review, by reference to a wide range of sources,

of the dangers and difficulties associated with visual

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identification. This is how the learned Chancellor expressed

himself at page 271 C-E:

“It must be recognised on all sides that no procedures can eliminate entirely the possibility of a misidentification. The fallibility of identification parades has been explored by Professor Glanville Williams in his PROOF OF GUILT and in two articles published in 1963 Crim. L.R. at pp. 479-490 and 546-555. And so it is the duty of the police to be scrupulously fair in the conduct of such a parade; fair to themselves and their own reputation; to the prisoner, lest he be innocent; to the victim of crime; and to the general public, lest a guilty man escape through rejection by the court of the evidence of identification at the trial. As the then Lord Chief Justice himself warned in Parks (4) cases of the identification can be difficult and could lead to miscarriages of justice. The identification parade is a safeguard valued and relied on by the courts in cases based wholly on visual identification of strangers to the witnesses, to reduce the likelihood of a misidentification. And that is why in R v Williams (5) ((1912), 8 Cr. App. Rep. at p. 88) ALVERSTONE, L.C.J., said: “…this identification was not properly carried out; Fulcher” (the witness) “saw the appellant alone in the police station, and did not pick him out from among other men. In the opinion of the Court the mode adopted was not a proper one,…” it is most essential, therefore, that the parade must provide a fair and just test. And, to my mind, it is impossible to hold a fair test if only the suspect in a line-up can possibly completely fit the description of the criminal given to the police and etched in the memory of the witness. In this case the assailant was “a short dark negro man with a scar on his left side face”; the appellant alone in the line-up could have fitted this description; the others could not. This was no test at all. As a test it was a

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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.”

Though it was probably impracticable to find seven men with

similar scars, Crane J.A. explained at pages 279 I to 280 C and

280 D-I, how the difficulty of conducting a fair parade, involving a

suspect with some peculiarity might be safely overcome. This is

how Crane J.A. laid down these principles:

“But sometimes a difficulty will appear to arise when the suspect is described as having a special characteristic like a mole on the cheek, a cleft chin or, as in the instant case, a scar on the side of the face. In such circumstances, are police compelled to convene a parade of at least seven persons each of whom is possessed of that special characteristic? The answer would appear to be Yes if they are to conduct a parade which is fair to the accused. But what if no person with the special characteristic can be found? Must the parade be held regardless? If the person identifying has previously told the police that his attacker had a cleft chin and only one person is paraded with that peculiarity, all other things being equal, I think it stands to reason that an adverse result to the suspect will be a foregone conclusion. Such a parade can hardly be said to be fair in the ordinary acceptance of the word. But are the difficulties of the police really insurmountable in cases such as those mentioned above? It seem to me their difficulties, if so they may be called, are sometimes more apparent than real.

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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 Jones’s, 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 judge’s 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. In the present case the police could, in like manner, with a bit of thought and imagination, have solved the problem if they were imbued with a spirit of fairness. But, as it turned out, they could not bring themselves to feel there was anything amiss in staging the parade with only one man with a scar on his face.”

If one were to substitute the dreadlocked man, or the man with

Rastafarian hair for the examples cited by Crane J.A., the

unfairness of the parade in which the appellant was said to be

identified becomes readily apparent. Had the police in this case

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covered the hair of all of the persons participating on the parade,

the element of unfairness arising from the appellant being

conspicuous by virtue of his Rastafarian hair would have been

eliminated.

18. Like Haynes C in Barrow, I too do not criticise the police in this

case. From a full reading of the record, however, it would seem,

as will emerge in the course of this judgment, that the existing

practices and procedures, together with the facilities available to

the police at Letlhakane for the holding of identification parades

are in urgent need of updating and modernisation.

19. At page 274 F-G Chancellor Haynes explained why it was

essential that every care should be taken in the conduct of

identification parades. This is what he said:

“Where a parade is held and there has been a positive identification, the evidence is likely to be given considerable weight. And that is why every effort must be made to make the exercise a completely fair test. If the test is not completely fair then as a result the identification at the trial might not be as completely reliable, as it should be, for a conviction. As LAWTON, L.J., said in Osborne and Virtue (11) ([1973] 2 W.L.R. at p. 218): “The whole object of identification parades is for the protection of

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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 identification parade should be held as soon as possible after

the arrest of the suspect. The longer the delay in holding the

parade, the greater the likelihood of error by the identifying

witness. Secondly, the total number of persons gathered

together for the holding of the parade should be sufficiently large

so as to make the identification process a reliable test of the

accuracy of any positive identification. Stemming from this, is the

ancillary rule that it is undesirable to have more than one suspect

on the same parade: and even if, for unavoidable reasons more

than one suspect is lined up in the same parade, the number of

participants should be sufficiently large so that there is a

meaningful test of the powers of recollection of the witnesses as

well as adequate safeguards against unfairness in the process.

In this case, two suspects – the appellant Keodirileng Segomotso

and Onkemetse Tekolo – were included in the same parade

which consisted of only ten persons. There appears to be some

force in the submission of the appellant that the number of

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persons participating in the parade where there were two

suspects should have been at least 14 or more.

21. In Budhsen v The State U.P. [1970] 1 S.C.R. 564, a Criminal

Appellate Division of the Supreme Court of India Dua J.

concluded at page 572 that:

“The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves to be subjected to a close and careful scrutiny by the court.”

22. Concerning Barrow’s case, the learned Chancellor noted that:

“Here, there was this glaring dissimilarity: he (the appellant) had a scar on the left side of his face; no one else had any.”

23. Reference to the close similarity of the facts of Barrow to the

case before us has already been made. In casu, the

identification parade was held some 18 days after the robbery.

In Barrow’s case, the delay was 17 days. Speaking in the

context of a jury trial, Chancellor Haynes declared that:

“A jury is entitled to more assistance than this,” (the inadequate instructions of the trial judge) “where the

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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.”

IDENTIFICATION IN THE COURTS BELOW

24. The question which the magistrate posed for determination was:

“are the accused persons standing before this court, the robbers or some of the robbers who robbed Rainbow Supermarket on the night of the 4th September 2005?”

25. He then reminded himself of the Turnbull guidelines laid down in

R v Turnbull and Others (1976) 63 Cr. App. R 132; [1976] 3 All

ER 549 (a five judge court). The consequence of a failure to

observe the guidelines is set out in the Forty Third Edition of

Archbold Criminal Pleading Evidence and Practice Vo. 1 at page

1141 14-29 which reads:

“A failure to follow the guidelines is likely to result in a conviction being quashed and would do so if, in the court’s judgment on all the evidence, the verdict was either unsatisfactory or unsafe. See for example R v Hunjan (1978) 68 Cr. App. R 99 C.A.”

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26. In The South African Law of Evidence by DT Zeffertt, AP Paizes,

A St Q Skeen 2003 at pages 142-143 under the heading

Evidence of identity and the subheading Direct Evidence, and

under the rubric Fallibility, the authors at the very outset sound a

note of caution about the unreliability of identification evidence in

this way:

“It is generally recognised that evidence of identification based upon a witness’s recollections of a person’s appearance is dangerously unreliable unless approached with due caution. The Appellate Division in S v Mthetwa laid down: 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; 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 the light of the totality of the evidence, and the probabilities.

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The average witness’s 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: The often patent honesty, sincerity and conviction

of an identifying witness remain, 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.

Evidence of identification thus requires to be closely scrutinised. In R v Shekelele, Dowling J said:

Witnesses should be asked by what features, marks or indications they identify the person whom they claim to recognise. Questions relating to height, build, complexion, what clothing he was wearing and so on should be put. A bald statement that the accused is the person who committed the crime is not enough. Such a statement unexplained, untested and uninvestigated, leaves the door wide open for possibilities of mistake.” (Emphasis added)

27. Appellate courts have frequently cautioned against the danger of

relying on the identification of a single witness. Rex v Masemang

1950 2 SA 488(A) at pages 493-495, Van Den Heever J.A.

articulated these principles thus:

“The probative value of personal identification will of course depend upon all the surrounding circumstances and each case will have to be decided

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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. …In my judgment, therefore, the appeal succeeds and the conviction and sentence are set aside. CENTLIVRES, J.A., AND SCHREINER J.A., concurred.”

28. In evaluating the evidence of identification before him, the

magistrate appears to have placed much store upon the

testimony of the witnesses that the environment on the night of

the robbery was bright, and that PW4 observed her attacker from

close range as he manhandled her. He also took into

consideration that the attacker did not have anything on his head

to conceal his identity. He regarded it to be of significant

importance that “she was able to identify her attacker later in an

identification parade.”

29. The contention of the appellant that the parade was unfair was

found to have no merit and summarily rejected as such.

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Impressed by the testimonies of the officer conducting the

parade and that of PW4, the magistrate was satisfied that “there

is nothing from accused 2 or any evidence to suggest that the

parade was flawed.” His final conclusion was:

“I have on her evidence, ruled out the possibility of genuine mistaken identity. Therefore, I return a verdict of guilty and the accused 2 is convicted as charged.”

30. The magistrate arrived at this startling conclusion without

examining the circumstances under which the identification

parade was conducted, without carrying out the tests of the

evidence as a whole which the Turnbull guidelines mandated,

and which are set out in the excerpt from The South African Law

of Evidence reproduced in paragraph 29, or observing the

cautious approaches laid down by Holmes J.A. in S v Mthetwa

1972(3) SA 766 (A), or applying the principles governing

identification generally as distilled in S v Nango 1990 (2) SALR

450 (A), or assessing the factors set out in paragraph 9 which

competed for the attention of PW4 following the sudden invasion

of the Supermarket by four bandits, one of whom was armed with

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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

cover behind decorative cloths. It escaped the magistrate

entirely that the ‘identification’ of PW4 took place in the midst of

the bedlam which erupted in the supermarket with disarming

suddenness and ended as abruptly as it commenced with the

flight of the bandits. Hardly, a scenario for calm and

uninterrupted observation of the appellant.

31. The magistrate unfortunately focused his attention mainly upon

the factors favouring a positive identification. Though citing a

small portion of the Turnbull principles, he paid but little heed to

the negative elements. The approach which the magistrate

should have taken is to be found in Boy v The State [1993] BLR

83 at pp. 85-86. Magistrates will do well to follow the sound

guidelines laid down by Cotran J. who said:

“In cases of this nature the learned chief magistrate should have addressed his mind, and reduced his thoughts into writing, according to the guidelines in R

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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 magistrate’s 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”.

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleged to be mistaken, the judicial officer should warn himself of the special need for caution before convicting in reliance on the correctness of the identification.

In addition, he should instruct himself as to the reasons for the need for such a warning and make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided that is done in clear terms, the judicial officer does not need to use any particular form of words.

Second, the judicial officer should direct himself and examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, e.g. by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If occasionally, had he any special reason for remembering the accused? How long a time elapsed between the original

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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.

Third, the judicial officer should remind himself of any specific weakness which had appeared in the identification evidence.

All those matters went to the quality of identification evidence. If the quality was good and remained good at the close of the accused’s case, the danger of a mistaken identification was lessened; but the poorer the quality, the greater the danger.”

32. When the matter reached the High Court on appeal, the judge

upheld the magistrate’s findings in this way:

“The evidence that the appellant was at the scene came from eyewitnesses who actually saw him. They subsequently identified him at an identification parade. (In fact, the second alleged eye-witness was not called)

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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. The appellant has not been able to specify the manner in which the parade was conducted unfairly. On the contrary the record shows that the parade was organised with a particularly meticulous care and its outcome can therefore not be faulted.”

33. Unfortunately the judge of the High Court did not give full

reasons for his findings. Presumably he adopted those of the

magistrate. Equally, he did not adhere to the Turnbull and other

principles, set out in paragraphs 25, 26 and 31 supra.

SAVINGS CLAUSE 34. As has been stressed throughout this judgment, the utmost care

should be exercised by police officers conducting an

identification parade, that the instructions given to the witnesses

being called to identify a suspect, bring home to the mind of the

witness that the person whom the witness has been called to

identify, may or may not be one of the persons assembled by the

police to participate in the parade. Unless this instruction is

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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

suspected of committing the offence under investigation is, as a

matter of fact, one of the persons whom the police have gathered

together for the purpose of participating in the parade. In the

absence of the savings clause, the witness may very well feel

obliged to pick out one of the persons paraded by the police as

being the alleged perpetrator. See R v Nara Sammy 1956(4) SA

629T per Dowling J.

35. In The State v Ken Barrow [1976], 22 W.L.R 267 at page 281 C-I,

CRANE J.A. of the Court of Appeal of Guyana which was in

1976, like the Court of Appeal of Botswana, the Apex Court of

the Cooperative Republic, set out the principles applicable to the

savings clause with admirable and persuasive clarity and, in

didactic fashion, explained the reasons why the employment of

that clause was of such crucial importance to the conduct of an

identification parade which could survive a searching test for its

fairness. His Honour then cited the following passage from

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Crane’s Law of Unlawful Possession (2nd edn). note (10) p. 156

which reads:

“The police officer in charge should add a ‘savings clause’ prior to what he tells the identifying witness, i.e., he should indicate to him that he should identify only ‘if the suspect if on parade’ or words to that effect. This, it is thought, would allay the fears of the witness that the suspect is on the parade and that the witness has got to pick him out because he is on the parade.”

THE CONDUCT OF THE PARADE

36. The laws governing the conduct of identification parades have

been discussed elsewhere in this judgment. This segment will

examine the actual conduct of the parade in this case. I record,

not by way of criticism but rather as an observation, that the

facilities for the conduct of identification parades will undoubtedly

be upgraded as and when resources permit. The conduct of an

identification parade in a court yard behind CID offices carries

with it risks of unfairness which will be eliminated when a modern

identification facility becomes available at Letlhakane Village. It

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

repaired after viewing the parade before being discharged.

37. Neither of the Botswana Police Identification Forms employed in

this case makes any note concerning the hair or hairstyles of the

participants. PW4 testified that she

“touched the dreadlocked man who was number eight in 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

one with dreadlocks. I saw you on the day of the incident.”

According to PW5 No. 11003 Detective Constable Pakiso, PW4

“alleged that the man standing by the door...had short

Rastafarian hair.” There was therefore a sufficiency of

information available to the police before the conduct of the

parade began that the appellant was a man with dreadlocks or

Rastafarian hair. It was therefore the bounden duty of the officer

conducting the parade, in the interest of fairness, to ensure that

some at least of the persons present on the parade had

dreadlocks or Rastafarian hair, or that the heads of all of the

persons participating in the parade were covered so that no hair

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was visible, and so that the appellant was in no way

conspicuous. No wonder that PW4 touched the dreadlocked

man. She attended the parade looking for a dreadlocked man.

That is why in the words of the Judge, PW4 “was able to easily

pick him (the appellant) during the identification parade.” But the

parade itself being fatally flawed for the many reasons

demonstrated, the appellant’s appeal on the ground of unfairness

of the parade must inevitably succeed.

38. Form BP 37 which is the Botswana Police Identification Parade

Form provides for recording the name of the officer conducting

the parade and his assistants. It states in print that “The parade

consists of the following persons who were of about the same

age, height, build, and vocation in life.” It says nothing about

colour of the hair and eyes, baldness, style of dress, beards,

moustaches or about the number of other characteristics that

could make a participant on a parade conspicuous. The form

provides for the NAME, AGE AND ADDRESS (of people in the

parade). It makes no provision for occupation or ethnicity or

complexion. It leaves much up to the good judgment of the

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officer conducting the parade which he or she will be best able to

exercise based upon the level of training, experience and

efficiency of the particular officer.

39. In S v Tawanda and Others 2008(1) SACR 613 at 653 [30] b-c,

the Supreme Court of Appeal of South Africa recognising the

inherent weakness of visual identification of persons previously

unknown to the witness cautioned that:

“In ordinary circumstances, a witness should be interrogated to ensure that the identification is not in error. Questions include –

What features, marks or indications they identify in the person whom they claim to recognise. Questions relating to his height, build, complexion, what clothing he was wearing and so on should be put. A bald statement that the accused is the person who committed the crime is not enough. Such a statement unexplored, untested and uninvestigated, leaves the door wide open for the possibilities of mistake.” R v Shekelele and Another 1953(1) SA 636 T at 638 H., per Dowling J., Prince J. concurring.

40. The well meaning question put to PW4 by ‘the officer with

badges, Mbisana’ who conducted the parade after she had

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identified the appellant at the identification parade, as to whether

she was sure, was bound to produce the predictable response

that the witness was sure. Many decided cases have recognised

that once a witness has convinced himself or herself about an

identification, there is little likelihood of a retraction of an

identification, however faulty, after it is made.

41. Inspector Mbisana testified that the investigating officer, Mr Duna

was present at the parade. This is undesirable. The practice is

that ‘neutral’ officers conduct the parade with neutral assistants.

The reason for this practice is obvious. It is to remove the

possibility that investigating officers who know the suspects and

are familiar with all the facts of the case might somehow affect

the processes of the parade improperly.

THE EVIDENCE OF PW4 42. The evidence of PW4 required critical evaluation and needed to

be treated with especial caution for at least three reasons:

(i) The totality of the circumstances in which the robbery was committed as described in paragraph 9 supra.

33

(ii) The fact that she was the only witness whose admissible evidence connected the appellant with the robbery.

(iii) The fact that she was giving evidence of visual

identification in the difficult conditions which prevailed in the night of the robbery.

43. PW4 admitted in cross-examination by the unrepresented

appellant that she made a statement on the date of the robbery.

The significance of that statement has already been discussed.

Neither of the courts below made any comment or observation or

sought any explanation from the prosecution about its absence

from the record.

44. It is beyond doubt that PW4 also made a statement on the 22nd

September 2005 which is the day upon which the identification

parade took place. That was her third statement. It does not

appear in the court file. The only statement made by PW4 which

could be found in the court file is dated 20/9/2005 which is some

16 days after the robbery. The critical portion of that statement is

set out in paragraph 13 supra.

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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

is no mention in this statement of the appellant, or any other

person for that matter having dreadlocks or short Rastafarian

hair. However, by the time she came to give her evidence before

the magistrate on the 28th June 2007, PW4 swore in cross-

examination that “on the day of the incident your dreadlocks were

not as long as it is today.”

46. That evidence, at first blush, would appear to tie in with that of

Detective Constable Pakiso that “Keeme Goitsemang (PW4)

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

from her, and whom she saw clearly as he held her. It is

inconceivable that she would describe to the police on the night

of the incident a man who did all these traumatising things to her

merely as “one man who was also standing by the door.”

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47. Though the appellant was unrepresented, his cross-examination

of PW4 was probing and relevant. He raised the question of her

statement to the police of the 4th September 2005. The

magistrate evidently thought that PW4 was an impressive

witness. But demeanour is not all. The quality of a witness and

her testimony must, even more importantly than by demeanour,

be evaluated by reference to objective criteria such as its

inherent plausibility, its credibility by reference to undisputed

facts or by the support it gets from other credible evidence.

48. Two of the eyewitnesses PWs 1 and 2 described themselves as

being shocked by the frightening events which were rapidly

unfolding around them. PW2 testified persuasively and

believably that when one of the robbers pointed a gun at her, she

uttered the expression of alarm “mmê wee!” and ran away. She

admitted quite readily, as a truthful witness is wont to do, a factor

favourable to the defence. She forthrightly conceded in cross-

examination by accused 1 that she could not remember the

colour of the gun as she was in shock. The courts below did not

take into account, sufficiently or at all, the possibility that PW4

36

could not realistically have maintained an icy calm in the face of

the shocking events of that night, and that the quality of her

evidence of observation and identification might have been

impaired by the difficult and stressful circumstances under which

she observed the actions of the four robbers, the staff and the

customers who were present in the supermarket.

INSTRUCTIONS BY THE OFFICERS CONDUCTING A PARADE

49. The magistrate in his judgment correctly expressed the issue

between the prosecution and the defence with which he had to

deal. This is how he put it at page 5 of his computerised

judgment:

“The only issue before this court is that of the identification of the robbers. Put differently, are the accused persons standing before this court, the robbers or some of the robbers who robbed Rainbow Supermarket on the night of the 4th September 2005?”

50. By deciding, correctly, to conduct an identification parade, the

police, even at the investigation stage, evidently realised that one

of the issues which would arise in any ensuing prosecution,

would be the issue isolated by the magistrate.

37

51. When therefore, the police invited potential witnesses to attend

an identification parade, it was their manifest duty to leave the

witnesses in no doubt but that their attendance at the parade was

not for the purpose of recognition simpliciter, but for the purpose

of determining whether any of the persons on the parade was

one of the persons who robbed the Rainbow Supermarket on the

night of the 4th September 2005. The relevant portion of the

Botswana Police Identification Parade Form BP. 37 reads:

“He was requested to walk carefully up and down the line and look at all persons and should he recognise a particular person, to point out such person by tapping on the shoulder with his hand.”

52. Evidently influenced by the printed instructions in Parade Form

BP. 37, No. 5723 Inspector Mbisana testified as follows:

“I told her (Lesego Manji) to look at the people in the parade and tell us who she recognised or identified.”

53. There is no evidence as to whether the Inspector gave any other

oral instructions to PW4 and if so what those oral instructions

38

were. His evidence regarding the attendance of PW4 at the

identification parade was:

“Keeme came escorted by Manyepedza. She identified Keodirileng – accused two.”

54. The officer conducting the parade must ensure that witnesses

attending an identification parade fully understand that the object

of the exercise is to ascertain whether or not they are able, from

their own observation and recollection, to identify anyone

involved in the commission of the crime in question.

55. Nowadays, participants in identification parades are numbered.

The participants and the witnesses may not be in the same room.

They may be separated in such a way that the participants are

not able to see the witnesses. The instructions can be tailored to

suit the manner in which the parade is organised, provided

always that they ensure fairness in the conduct of the parade.

Because of the difficulties as experienced in the instant case,

photographs and videos are now taken of the participants so that

39

the court is better able to determine whether the parade was

conducted fairly or not.

PARADE ATTENDEE NOT TESTIFYING

56. There is evidence that on the 22nd September 2005 Lesego

Manjee, an employee of the supermarket who was on duty on

the night of the robbery, attended an identification parade. The

Botswana Police Identification Parade Form BP. 37 purports to

show that this witness identified the appellant as a person whom

she recognised. Recognition without more, or mere recognition,

does not by itself connect the appellant with the robbery. The

form does not show that the witness was identifying the appellant

as a person who participated in the robbery at the Rainbow

Supermarket in Letlhakane Village on the night of the 4th

September 2005. The ‘identification’ of the appellant by PW4

suffers from the same weakness. Despite this fact, the judge of

the High Court found that “one witness called Lesego Manji

identified the appellant as one of the robbers.” The judge’s

finding on the identification by Lesego Manjee cannot be

40

supported for the additional reason that this person did not give

evidence at the trial.

57. At page 272 H-I of the Barrow case, Haynes C. articulated the

principle of law that:

“…the identification at the parade is not, at the trial, substantive proof of evidence, on which guilt can be solely rested. An accused cannot be, at his trial, linked with a crime only by the evidence that at a parade he was picked out as the offender. He must be identified by a witness on oath at his trial.”

INADMISSIBLE HEARSAY EVIDENCE

58. Under this ground of appeal, the appellant points to the evidence

of PW5, No. 11103 Detective Constable Pakiso who swore that:

“On the 19th September 2005, I received information from sergeant Moagi of Orapa police that he had arrested accused 2 and accused 3. He further informed me that when he interviewed the suspects they confirmed their involvement at the incident at rainbow. I asked him to hand them over to me.”

He contended that the above testimony is an inadmissible

confession to a police officer who did not testify and that it

should have been excluded by the magistrate. There is merit in

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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

and the prosecution of the suspects. Many errors were made by

the police which could be corrected with the requisite training or,

if the officers concerned were already trained in these matters,

by a faithful adherence to their training. When asked why he did

not arrange for an identification parade in respect of the No. 1

accused, PW5 declared that “I took a short cut.” Short cuts are

notoriously risky and dangerous.

60. The short cut which PW5 took was to stage a confrontation

between the witness and the suspected No. 1 accused. The

result is that the magistrate quite properly acquitted and

discharged the No. 1 accused. The errors made by the police in

the assembly and in the conduct of the parade need to be

addressed: or they are likely to be repeated. Hopefully the

authoritative pronouncements of the judges of superior courts

42

cited in this judgment will assist in preventing a repetition of the

mistakes discovered in the record of this case.

ORDER

61. It is ordered that:

(i) The appeal is allowed. (ii) The conviction and sentence of the appellant are set

aside. (iii) The appellant is acquitted and discharged.

DELIVERED IN OPEN COURT AT LOBATSE THIS 27TH DAY OF JANUARY 2011.

--------------------------------- S.A. MOORE

JUSTICE OF APPEAL I agree ------------------------------

N.J. McNALLY JUSTICE OF APPEAL

I agree ------------------------------

J.G. FOXCROFT JUSTICE OF APPEAL