It is thus upon the prosecution to prove this position beyond reasonable doubt, otherwise as we saw in the case we used although the High Court of Tanzania convicted the appellant of murdering his father and sentenced him to face death by hanging when he appealed to the Court of Appeal he was exonerated from criminal liability as his appeal was allowed, his conviction quashed and the sentence of death by hanging set aside.
The Court of Appeal also ordered that he be immediately set free, unless he was otherwise lawfully held. Today, I invite you to briefly look visual identification in criminal cases. Before we do that, let me take you back to what we once said about Blackstone’s ratio that:
“It is better that 10 guilty persons escape than that one innocent person suffer.” Blackstone’s ratio has over the years become a legal maxim. In courts of justice (not merely “courts of law”), no evidence can stand against an accused person unless the prosecution proves beyond reasonable doubt that it is the accused person and nobody else who committed the offence he or she is charged with and the court is satisfied with it after weighing such evidence.
The reason behind this as John Adams (a devotee of the right to counsel and presumption of innocence) put it “it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I believe well or ill; for virtue itself, is no security.
And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security whatsoever.” After Adams’ long quotation, let’s now look at visual identification and find out how it can be established in a court of justice. The case of Boniface Siwingwa (appellant) v Republic (respondent), a criminal appeal No 421 of 2007 from the decision of the High Court of Tanzania in Mbeya was the second appeal. The appellant and five others were charged in the District Court of Mbozi at Vwawa with armed robbery contrary to sections 285 and 286 of the Penal Code (Chapter 16).
The appellant and his co-accused were convicted as charged and each was sentenced to the statutory minimum of 30 years’ imprisonment, but the other three co-accused persons were acquitted. Aggrieved by the conviction and sentence of the trial District Court, the appellant unsuccessfully appealed to the High Court of Tanzania. He then appealed to the Court of Appeal. One ground he advanced was that the circumstances in which the commission of the offence he was charged with were shaky for proper visual identification. Another ground was that the prosecution did not prove the case to the standard required.
These two were among the five grounds he had presented. The offence he was charged with was alleged to have been committed at about 21:00.
The Court of Appeal cited the case of Waziri Amani VR (1980) by which this court said: "The first point we wish to make is an elementary one and this is that evidence of visual identification, as courts in East Africa and England have warned in a number of cases, is of the weakest kind and most unreliable.
It follows, therefore, that no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and is fully satisfied that the evidence before it is absolutely watertight." The Court of Appeal looked into details of the cited case especially on some questions which had to be resolved like the time the witness had the accused under observation, the distance at which the accused was observed, the conditions in which such observation occurred, whether it was day or night time, whether there was good or poor lighting at the scene and the witnesses knew or had seen the accused before or not because these were among the issues the trial judge (or magistrate) should direct his [her] mind before coming to any definite conclusion on the issue of identity.
However, weighing the evidence presented before the Court of Appeal, the Justice of Appeal said although some of the witnesses claimed to be familiar with the accused, familiarity was one of the factors to be taken into consideration in deciding whether or not a witness identified the assailant. The Justice of Appeal said considering since other conditions for proper identification ware not conducive, familiarity with the accused alone was not enough to rely on to incriminate the accused person.
“The witness must give detailed explanation as to how he or she identified the assailant at the scene of crime as the witness might be honest, but mistaken.” Furthermore, the Justice of Appeal citing another case of Philipo Rukaiza @Kitwechembogo V Republic (criminal appeal No 215 of 1994) (unreported) said said: “The evidence in every case where visual identification is what is relied on must be subjected to careful scrutiny, due regard being paid to all the circumstances, there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility of error has been dispelled.
There could be a mistake in the identification notwithstanding the honest belief of an otherwise truthful identifying witness." The Justice of Appeal went further saying that it was their considered view that had the lower courts considered all the relevant facts discussed above, they would have found that the evidence of six witnesses in support of the prosecution was not absolutely water tight. In light of this, the Justice of Appeal allowed the appeal, quashed the conviction of the appellant and set aside the 30-year imprisonment imposed on him. He then ordered the appellant to be released from custody forthwith unless otherwise lawfully incarcerated.
_0.jpg?itok=QU87XW8D){kind=tracking}
.jpeg?itok=vCj6bCRe)
