By Collins Nkumbwa
ABSTRACT
The Zambian legal system is premised on the concept of adducing evidence to establish both the commission of the offence and linking the accused to the alleged offence. This requirement necessitates elimination of the danger of false complaint and false accusation. This paper has established that an identification parade is vital in law of evidence to establish whether the accused person is the person who committed the offence. This paper focuses the factors that are considered necessary to determine whether the identification parade was fair to the accused person. Similarly, the identification parade is critical when it comes to the defence of alibi. The prosecution has the onus to establish whether the accused was present at the crime scene during the day and time when the offence was committed. The judicial precedents take cognisance of the weaknesses of this type of evidence as illustrated below.
Keywords – Identification, Alibi, Admissibility, evidential weight, honesty and reliability.
INTRODUCTION
The evidence of identification illustrates not only that a crime was committed but that the accused committed the crime. The test is always whether a given identification parade is capable of being described as fair to the accused. If so, it is competent for a court to convict on the evidence of a single identifying witness with some other evidence supporting the identification.
Alibi means a claim or piece of evidence that one was elsewhere when an act, especially a criminal one, is alleged to have taken place. The onus is on the prosecution to disprove the alibi. The prosecution takes a serious risk if they do not adduce evidence from witnesses who can discount the alibi.
The following judicial precedents illustrate the two concepts as follows:
JUDICIAL PRECEDENTS
The Supreme Court of Zambia in Ilunga Kabala and John Masefu v The People discussed the concept of identification and alibi defence. The following principles of law were elucidated:
To put suspects with visible injuries on their bodies on an identification parade consisting of other persons having no such injuries is tantamount to providing identifying witnesses with a clue;
It is enough if suspects of different heights are placed among other persons of comparable heights and that the general standard of dress, let alone general appearance of participants at the parade is more or less similar;
The test is always whether a given identification parade is capable of being described as fair to the accused. Emphasis ought to be placed on fairness and not necessarily on the number of parades conducted;
The sole object of an identification parade is to test the ability of an identifying witness to pick out a person he claims to have previously seen on a specified occasion;
To achieve that object, those charged with the duty of conducting identification parades must ensure that such parades are free from unfairness;
There is no rule of evidence or practice in Zambia which calls for the holding of a firearm's identification parade;
In any criminal case where an alibi is alleged, the onus is on the prosecution to disprove the alibi. The prosecution takes a serious risk if they do not adduce evidence from witnesses who can discount the alibi unless the remainder of the evidence is itself sufficient to counteract it. (Emphasis supplied)
The Court of Appeal of Zambia in Banda vs the People stated that it is competent for a court to convict on the evidence of a single identifying witness. The court sounded a caution to trial courts that in the case of a single identifying witness, there should be some other evidence supporting the identification. The court relied on the following cases to establish the principles of law:Chimbini v. The People - It is necessary to test the evidence of a single witness with due care. The honesty of the witness is not the abiding consideration. The court must be satisfied that the witnesses' observation is reliable;Kateka v. The People - when it comes to identification of the accused, the question is not one of credibility in the sense of truthfulness, but of reliability, and the greatest care should be taken to test the identification;Haamenda v. The People - The court adopted the principles laid down by Lord Widgery CJ's dicta in R. v. Turnbull, that: "where the quality of the identification is good and remains so at the close of the defence, the danger of mistaken identification is lessened; the poorer the quality, the greater the danger. In the latter event the court should look for supporting evidence of identification. Odd coincidence can provide corroboration.";Mavuma Kabanja Situna vs The People - if the opportunity for a positive and reliable identification is poor, then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which should render a mistaken identification too much of a coincidence.Love Chipili v. the People - If the circumstances of the attack are traumatic and there is only a fleeting glimpse of an assailant, the fact that an appellant had previously been seen by the identifier does not render an identification safe;Nyambe v. the People - The witness should specify by what features or unusual marks if any, he alleges to recognize the accused and the circumstances in which the accused was observed, the state of light, the opportunity for observation, the stress of the moment should be carefully canvassed. (Emphasis supplied)
CONCLUSION AND RECOMMENDATION
From the foregoing, it is clear that evidence of identification serves two purposes. Firstly, it establishes that a crime was committed and secondly, that the accused committed the crime. While it is permissible to convict on the evidence of a single identifying witness, the courts are caution of possibility of making honest mistakes in identification of the accused hence the need for some other evidence supporting the identification. With reference to defence of alibi, the onus is on the prosecution to disprove the alibi and if not disputed, the court may take it that the allegation by the accused person is established.
While the two concepts seem to be working well in the Zambian legal system, it is vital for the legislature to promulgate a law or amendments to the law to enhance uniformity of application of the two concepts in the law. This promotes certainty and predictability of application of the two concepts in the legal system.
About Author
Counsel Collins Nkumbwa, Esq.
CIP, LL.B, LL.M, AHCZ. ASCZ, PhD Cand.
Lecturer of Law and Commissioner of Oaths
Principal Author’s Email – collinsnkumbwa4@gmail.com
REFERENCES
CASES
Chimbini v. The People [1973] ZR 191
Haamenda v. The People [1977] ZR 184
Kateka v. The People [1977] ZR 35
Love Chipili v. the People [1986] ZR 115
Mavuma Kabanja Situna v. The People [1982J ZR 115
Nyambe v. the People [1973J ZR 228
R. v. Turnbull [1976J 3ALL ER 549
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