05/12/2019
Copied from@vitabu vya sheria
VISUAL IDENTIFICATION OF SUSPECTS AND ADMISSIBILITY OF ITS EVIDENCE
It is settled principle that, in a case involving evidence of visual identification no court should act on such evidence unless all possibilities of mistaken identity are eliminated and that the court is satisfied that the evidence before it is absolutely watertight. In such cases conditions favoring a correct identification are of utmost importance. Case laws have established necessary descriptions to be made by the identifying witness such as the length of time he had with the accused under observation, the proximity between them/distance from which the witness had the accused under observation, if there was any light then the source and intensity of such light, description of attire, whether he was tall or short etc, and whether he knew him before or was his first time to see him etc.
SEE THE CASES OF Chacha Mwita & 2 Others vs Republic, Criminal Appeal No. 302 of 2013 CAT Mwanza (unreported) . see Sion Benard v Republic, Criminal Appeal No. 279 of 2013 Derick Alphonce & Another vs Republic, Criminal Appeal NO. 23 of 2015 CAT Mbeya (unreported) pg.9,10., Waziri Amani vs Republic [ 1980] TLR 250 and Raymond Francis vs Republic [ 1994] TLR 2, Sion Benard v Republic, Criminal Appeal No. 279 of 2013 pg. 8.
If a witness is testifying about identifying another person in unfavorable circumstances such as during the night, he must give clear evidence which leaves no doubt that the identification is correct and reliable. The above cases listed a few summaries of necessary points of proof such as:-
(1) If the witness is relying on some light as an aid of visual identification he must describe the source and intensity of that light.
(2) The witness should explain how close he was to the culprit(s) and the time spent on the encounter.
(3) The witness should describe the culprit or culprits in terms of body build, complexion, size, attire, or any peculiar body features to the next person that he comes across and should repeal those descriptions at his first report to the police on the crime, who would in turn testify to that effect to lend credence to such witness’s evidence.
(4) Ideally, upon receiving the description of the suspect(s) the Police should mount an identification parade to test the witness’s memory, and then at the trial the witness should be led to identify him again.
In the case of Issa Mgara @ Shuka vs Republic, Criminal Appeal No. 37 of 2005 CAT (unreported), the court was of the view that, even in cases where a witness may have known the suspect before, mistakes may still be made, that is, in recognition cases where such evidence may be more reliable than identification of a stranger, clear evidence on the source of light and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition of close relatives and friends are often made.
It is not sufficient to make bare assertions that there was light at the scene of the crime without mentioning the type of light, its intensity, illumination of light etc. It is common knowledge that lamps be they electric bulbs, fluorescent tubes, hurricane lamps, wick lamps, lanterns etc give out light with varying intensities. Definitely, light from a wick lamp cannot be compared with those from a pressure lamp or fluorescent tube. This demands the witness to give sufficient detains on the intensity of the light and the size of the area illuminated. See Kurubone Bagirigwa & 3 Others vs Republic, Criminal Appeal NO. 132 of 2015 CAT Mwanza (unreported) pg.8,
In my practice, whenever I face a case involving visual identification, I usually go through a prepared list of questions to ask myself when establishing proper identification. Some of the key questions include the followings.
(1) Whether the incident occurred during night or day time
(2) Whether the witness knew or had seen the accused before
(3) Whether any identification parade was conducted if he did not know or had never seen him before.
(4) For how long did the witness observe the accused at the material time of committing the offence?
(5) The type of light available which assisted him in identification
(6) Intensity and illumination of the said light
(7) The distance the source of light was from the accused and witness
(8) Proximity of the accused from identifying witness( the distance he was from the accused)
(9) Did the identifying witness give proper description of the accused person before his arrest? Eg. The attire, height, type and colour of clothes and any other identical feature of him especially if he did not know the accused before.
(10) What period had elapsed between the original observation (at the time of committing the offence) and the subsequent identification after the arrest of the accused?
(11) Is there any corroboration of an otherwise poor identification?
(12) Is there any material discrepancy between witnesses on the description of the accused?
(13) Is there any possibility of any mistaken identity?
(14) Was the identifying witness in a terror-mood at the material time when the offence was committed? if yes, how long did the state of terror last.
(15) Does the witness have sight problems either of seeing long distance or short distance? The case which may be applicable to aged persons or any other person with eye impairment.
(16) Whether there was any conversation. Identified voice ie. Heavy or light can corroborate other identification of visions analyzed by the witness.
