CRIMINAL APPEAL NO. 1 OF 1996
This is an appeal by James Mkwamba from the decision of the Principal Resident Magistrate at Balaka. The Principal Resident Magistrate convicted the appellant of the offence of armed robbery contrary to section 301 of the Penal Code. The Court below sentenced the appellant to three years imprisonment with hard labour. When I heard the case on the 25th of February 1996, I allowed the appeal. I reserved judgment.
On the 3rd of May 1995 Mr. Gazamiyala was robbed at Balaka Bus Depot. He lost his briefcase, a wrist watch and cash. He left his house a bit early to catch the bus. At first, the time the incident took place is put as 5:00 in the morning. In cross-examination the time is put as 4:30 in the morning. The assailants, two of them, came on him. One had a panga knife. One of them demanded a briefcase. He told the complainant that should give over the briefcase if the complainant wanted life. The complainant shouted for help in vain. He struggled for the briefcase in vain. The complainant was stabbed in the elbow. The matter was reported to the police.
There was an identification parade. It was conducted by Detective Constable Tsegula. The complainant was called. There were eight people involved. The complainant pointed at the defendant. He did the same when the people changed positions.
The identification by the parade was properly rejected by the Principal Resident Magistrate. Following what this Court had laid in Andrew vs. Republic [1971-72]6 ALR (M) 297, that an identification parade should be conducted by a police officer of a higher rank than a constable, preferably not the officer in charge of the investigations, and such officer should give evidence of the formation of a parade, whether any of the participants were similar in shoulder, height and dress to the accused, whether the accused was allowed to choose his position in the parade. The Principal Resident Magistrate thought that the parade conducted in this manner did not reach the mark. It was conducted by a constable in charge of the investigations. There was no evidence on the other aspect of the decorum of the parade. There was none.
It does appear from the record that before the parade the complainant was allowed to identify the defendant directly. The complainant said this when cross-examined by the defendant. This is also suggested by the evidence of the other policeman. The defendant also mentions it in his defense. The purpose of an identification parade is that there may be no doubt about the identification of the culprit by the complainant. It is hoped that by the identification parade the complainant may be given a chance to spot for the first time since the event the suspect from a group. The efficiency of the exercise is undermined if, before the parade, the complainant is given a chance to survey the defendant and later allowed to identify the defendant from the parade. There was reason, therefore, for rejecting the parade.
In fact here there was an identification parade which we have said was defective indeed. There is a whole danger that the complainant in his evidence in Court, with the defendant in the in the dock, could be reenforcing the impressions of the identification parade and labouring under the fact that the process has brought the correct person in Court. Such prospect will always loom when an identification parade has been conducted and is relied on to prove the case.
It is for these reasons that on the 23rd of February 1996 I dismissed the appeal.
Made in open Court this 30th day of March 1996 at Blantyre.