IDENTIFICATION CRIMINAL PROCEDURE NOTES IN TANZANIA

IDENTIFICATION CRIMINAL PROCEDURE NOTES IN TANZANIA

Meaning of Identification

Identity of a thing or person is an expression of opinion that that thing or person resembles another thing or person so much so that it is likely to be the same thing or person. It is a comparison that looks for resemblances.

In criminal law, the identity of an accused must be established and that person has to be shown to be the one who committed the particular offence. Therefore, there has to be a process through which the accused is connected to the crime and this process is referred to as identification.

Likewise in civil cases, identity is important. Any person who wishes to institute a case against another must clearly describe the identity of that other person and where the person is found.

The process of identification in criminal law usually seeks to ensure the following:
 The person identifying must have seen or observed the person being identified.
The identifying person must have had a settled impression in his/her mind at the relevant time i.e. he or she must not have been in panic.

  The mental picture a person has at the time of identification must be the same as that he or she had when he or she first saw the accused. It must not be tainted by other factors or opinions of third parties.

The time taken in identifying the accused person is important. If for example it is a short period such as a few seconds, it may not be enough for a person to notice.

Consideration must also be given to those opportunities allowing for proper identification. This is generally referred to as the conditions and circumstances ideal for identification such as time taken, amount of light, distance between the identifier and the accused person and whether the suspect was known to the identifier before or is a complete stranger.

An accused person may be identified in court, at an identification parade or through previous conduct.

Identification parade

Identification parades are normally conducted by the police during investigations in an attempt to identify the accused or suspect with the offence for which he or she is charged or suspected. The purpose of the parade is to find out from the witness who claims to have seen the accused or suspect at the scene of the crime whether he can identify the accused or suspect as the person he or she saw previously at the scene of the crime or actually committing the offence. The witness must have seen the suspect previously, lest the parade will be of no evidential value. In addition, the witness should not have seen the suspect subsequent to his or her arrest, as his or her identification at the parade may be said to be based on his or her having seen the suspect after arrest and not at the time the crime was committed.

In order to ensure that identification parades are conducted fairly, the High Court of Uganda has approved certain rules for conducting identification parades.

See:     Sentale v Uganda (1968) EA 365

R v Mwango (1936) 3 EACA 29
Simon Musoke v R (1958) EA 715
The police officer conducting the parade is required to ensure the following:

1.                  That the accused person is always informed that he may have an advocate or friend present when the parade takes place;

2.                  That the officer in charge of the case, although he may be present, does not carry out the identification;

3.                  That the witness does not see the accused before the parade;

4.                  That the accused is placed among at least eight persons as far as possible, of similar age, height, general appearance and class of life as himself or herself;

5.                  That the accused is allowed to take any position he or she wishes after each identifying witness has left if he so desires;

6.                  Care should be exercised that the witnesses are not allowed to communicate with each other after they have been to the parade;

7.                  Exclude every person who has no business there;

8.                  Make a careful note after each witness leaves the parade, recording whether the witness identifies, or other circumstances;

9.                  If the witness desires to see the accused walk, hear him speak, see him with his hat on or off, see that this is done. As a precautionary measure, it is being suggested the whole parade be asked to do this.

10.              See that the witness touches the person he or she identifies.

11.              At the preparation of the parade or during the parade ask the accused if he or she is satisfied that the parade is being conducted in a fair manner and make a note of his or her reply.

12.              In introducing the witness, tell him or her that he or she will see a group of people who may or may not contain the suspected person. Do not say “Pick out somebody” or influence him or her in any way whatsoever.

13.              Act with scrupulous fairness, otherwise the value of the identification as evidence will depreciate considerably.

The following extract is from the case of Kurong Stanley v Uganda (Court of Appeal Civil Appeal No. 314 of 2003) [2008] UGCA 11
“We now turn to the merits of the appeal. We find it convenient to begin with the evidence of the identification parade. The learned trial judge considered the evidence at length and came to the conclusion that the parade was conducted in accordance with the rules laid down in Republic vs Mwanga s/o Manaa (1936) EACA 29. It is this conclusion that was challenged by the appellants’ counsel at the trial of the appeal. We begin with his submission that the appellant was never informed of his right to request that a lawyer be present at the parade and that this omission was fatal to the whole parade. Counsel relied on the case of Ssesanga Stephen vs Uganda Civil Appeal No.85 of 2000 (CA) in which this Court held that the right of the accused to be informed that he could have his lawyer present was mandatory and failure to inform him would be fatal to the parade. In the instant case, the appellant was asked whether he had an advocate whom he wished to attend and he answered in the negative. In our view, the fact that the appellant was asked whether he had lawyer should have alerted him to the possibility that he could have a lawyer present if he wished to have one present. He could have asked there and then whether, if he had one, he would be allowed to attend. Instead, he simply answered that he had no lawyer and never complained thereafter about the absence of one at the identification parade. We think that this case is distinguishable from the Ssesanga case where the appellant was never alerted to the possibility that he could require that an advocate or a friend attends the parade.

The second objection to the parade is that witnesses at the parade were shown the appellant before the exercise was conducted. We have read the evidence of PW7, the officer who carried out the parade, and the appellant’s own evidence on the matter. We do not find any evidence to support that claim. The learned trial judge can be forgiven for rejecting the appellant’s evidence on the matter because, on the whole, she found that he was an “inveterate liar”. As the trial judge who had the opportunity to see all the witnesses, including the appellant, in the witness box, she was entitled to make that finding.

The third objection was that at the parade, the appellant was lined up with people of dissimilar appearance in size and height which made it easy to be identified.

The rules in Mwanga case (supra) require that the accused should be placed as far as possible with persons of similar age, general appearance and class of life of himself or herself. According to PW7 Ojok Bona who conducted the parade, most of the volunteers who participated in the parade were “almost of same size” with the suspect. We also note that most of the volunteers were aged between 18 and 31 years except one who was aged 37 which was also the age of the appellant. It is not always an easy matter to assemble eight volunteers of similar age, height and size, but all effort should be made towards that direction so that the suspect does not stand out as manifestly distinct from all other participants. We accept the evidence of the police officer (PW7) that he lined up eight people of similar appearances of the appellant save that only one of them was of his age. However, since the witnesses did not know the age of the appellant, this could not have occasioned a miscarriage of justice or prejudice the judgment of the witnesses. Moreover, this was not one of the reasons that the appellant advanced against the fairness of the whole exercise when he was asked whether he was satisfied with the conduct of the parade. We hold that the irregularity on age differential is minor and did not prejudice the fairness of the whole exercise.

Finally, counsel challenged the fairness of the conduct of the parade on the ground that it was suggested to the witnesses that the man whom they saw in Gulu at the scene of crime was definitely one of the nine men paraded. According to DW7, he was instructing the identifying witness to walk along the parade and to touch the person he/she saw in Gulu if he/she recognised one. Four witnesses were told the same thing and they picked out the appellant. The appellant himself agrees that this was the procedure used. Counsel for the appellant did not tell us the words PW7 used that suggested that the suspect would be in the parade. We do not agree that the instructions PW 7 gave the witnesses suggested what counsel for the appellant is complaining of. All he said was that if you recognise among these people the man you saw in Gulu, then touch him. The use of the word IFclearly left the possibility that the suspect may be there and you don’t recognise him or he may not be there at all. This objection to the fairness of the parade is unfounded and we reject it.

On the whole, we find that there were a few minor irregularities in the exercise but on the whole they did not prejudice the fairness of the identification parade. Both PW7 (the police witness) and the appellant himself agree that four witnesses picked out the appellant from the line. We agree with the trial court that there was no credible evidence that three Gulu lodge witnesses who picked the appellant from the line were shown the appellant before the exercise began. It is unfortunate that two of them did not testify in court but the appellant himself testified that they picked him out of the parade of eight volunteers. We hold that the identification parade was conducted properly and fairly.”

Conditions necessary for a proper identification

The leading authority is the case of:
Abudala Nabulere & 2 Others v Uganda, Court of Appeal Cr. App. No. 12 of 1981;  [1979] HCB 77

  Held: The court observed the following:

“Where the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence disputes, the judge should warn himself and the assessors of the special need for caution before convicting the accused in reliance on the correct identification or identifications. The reason for the special caution is that there is a possibility that a mistaken witness can be a convincing one, that even a number of such witnesses can all be mistaken. The judge should then examine closely the circumstances the identification came to be made, particularly the length of time, the distance, the light, the familiarity of the witness with the accused. All these factors go to the quality of the identification evidence. If the quality is good the danger of mistaken identity is reduced, but the poorer the quality the greater the danger.”

 Abdallah bin Wendo & Another v R 20 EACA 166

Facts: The appellants were convicted of murder of a plantation watchman on a very dark night.

Held: The trial judge convicted the appellants feeling it safe to accept evidence of one man M as to their identity. 

Identification by a single witness

See:     Areet Sam v Uganda Supreme Court Criminal Appeal 20/2005
 Amooti Immaculate v Uganda High Court Criminal Appeal 27 of 2007

Under s. 133 of the Evidence Act, no particular number of witnesses is required to prove any fact. Accordingly, even a single witness can be called to prove a fact. However, because of the dangers associated with such testimony, the courts have set out certain rules in this regard.

Uganda v George Wilson Simbwa Sct. Cr. App No. 37 of 1995

Facts: The respondent was tried and acquitted of murder. The DPP appealed against the acquittal arguing that the appeal involves a point of law of public importance. It was alleged that one night while the deceased and his son guarded their banana plantation against thieves who used to steal their bananas, the respondent, armed with a spear and a panga went to the plantation to steal. The deceased’s son saw him and the deceased went forward to confront him but was speared by the respondent. The son raised an alarm which many villagers answered. When they arrived at the scene the deceased was still alive and told them that he had been stabbed by the respondent. The respondent lived on the same village as the deceased and was well-known to the deceased’s family. The trial judge found the conditions in the banana plantation unfavourable for easy identification. That it was in a valley, no evidence was given to show that the two cell torch held by the deceased’s son gave out light of sufficient intensity, no evidence was led to show how the clusters in the plantation were spaced , interalia.

Held: (Supreme Court): The law regarding identification by a single witness is now well settled and quoted a number of cases,

“Briefly, the law is that although identification of an accused person can be proved by the testimony of a single witness this does not lessen the need for testing it with the greatest care especially when the conditions favouring correct identification are difficult. Circumstances to take into account include the presence and nature of light, whether the accused person is known to the witness before the incident or not, the length of time and the opportunity the witness had to see the accused and the distance between them. Where conditions are unfavourable for correct identification, what is needed is other evidence pointing to guilt from which it can be reasonably concluded that the evidence of identification can safely be accepted as free from possibility of error. The true test is not whether the evidence of such a witness is reliable. A witness may be truthful and his evidence apparently reliable and yet there is still a risk of an honest mistake particularly in identification. The true test is...whether the evidence can be accepted as free from the possibility of error.”

The Supreme Court further observed that the deceased’s son was carrying a torch containing two dry battery cells (two weeks old), had flashed the torch at the respondent who was only six metres away from the witness, the witness had known him for seven years and lived in the same village and was even able to describe the clothes the accused was wearing which evidence was unchallenged. That although the trial judge had properly directed himself on the law applicable to evidence of identification by single witness but misapplied the law thereby reaching a wrong conclusion. The evidence of identification was also corroborated by the dying declaration which ruled out any mistaken identity.

Identification through previous conduct
See generally similar fact evidence.