S v Nyabo (327/07) [2008] ZASCA 150; [2009] 2 All SA 271 (SCA) (27 November 2008)

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[2008] ZASCA 150
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S v Nyabo (327/07) [2008] ZASCA 150; [2009] 2 All SA 271 (SCA) (27 November 2008)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 327/07
No
precedential significance
S
NYABO Appellant
and
THE
STATE Respondent
Neutral
citation:
Nyabo v S
(327/07)
[2008] ZASCA 150
(27 November 2008)
Coram:
HEHER, COMBRINCK and CACHALIA JJA
Heard:
12
NOVEMBER 2008
Delivered: 27 NOVEMBER
2008
Corrected:
Summary: Criminal
procedure – single witness – identification – factors
influencing reliability.
_______________________________________________________________
ORDER
_________________________________________________________________
On
appeal from: High Court, SECLD (Kroon J, sitting as court of first
instance; Jansen, Nepgen JJ and Nhlangulela AJ as Court of
Appeal).
The
appeal succeeds. The order of the court below is set aside in so far
as it relates to counts 1 and 2. In its place there is
substituted a
finding of not guilty and discharged in respect of those counts.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
HEHER
JA
(Combrinck
and Cachalia JJA concurring):
[1] The
appellant, a man of about 28 years of age, was convicted by Kroon J
of several serious offences of which only one count
of robbery and
one count of rape are presently relevant. His appeal to the Full
Court of the Eastern Cape Division was dismissed
(by Jansen J, Nepgen
J and Nhlangulela AJ concurring). The present appeal, limited to the
said counts, results from special leave
granted by this Court.
[2] The
complainant on each count was the same person, a woman in her early
twenties. She was a single witness. Both offences were
committed on
the night of 30 November – 1 December 2002 in the Port Elizabeth
area. The appellant was arrested on 29 February
2004. When tried in
September 2005 he pleaded not guilty and denied all knowledge of the
complainant or the offences. The commission
of the offences was not
in serious doubt. The real question throughout has been whether the
complainant
reliably
identified the appellant as one of her assailants.
[3] The
trial judge found the complainant to be both credible and reliable.
He disbelieved the appellant. The Full Court simply
held that he had
not misdirected himself and that there were accordingly no grounds
for interference with the convictions. An abbreviated
account of the
evidence before the trial court is necessary for present purposes.
[4] At
about 10 o’clock at night the complainant was abducted in a public
street by two men. One pointed a gun at her head and
the other at her
body. She was instructed to look at the ground and walk with them or
she would be killed. After some 20 minutes
they reached a darkened
shack which one of them unlocked. There she was raped by each in turn
while held at gunpoint by the other.
One then left and she remained
seated with his companion, whom she later identified as the
appellant, for, she said, about two
hours, all the while threatened
by his firearm. The appellant then raped her a second time. He then
also disappeared and the complainant
was able to dress and leave.
[5] According
to the complainant she furnished the police with a description of the
appellant who was otherwise totally unknown
to her. In February 2004,
at the instance of the police she identified the appellant in
circumstances which I shall describe hereinafter.
[6] In
the course of his judgment Kroon J set out certain general principles
which he regarded as defining his evaluation of the
case against the
appellant. First, he noted that demeanour in the witness box ‘is at
best a problematic indicator of reliability’
and ‘apparent
confidence in the witness box is also no guarantee of reliability’.
More important, he said, is ‘the content
of a witness’s evidence,
seen in the totality of the evidence and in the light of the
probabilities’. Second, the learned judge
cautioned himself, the
fact that the complainant was a single witness enjoined him to
approach her evidence with circumspection.
Third, he referred to the
well-known catalogue identified in
S
v Mthetwa
1972
(3) SA 766
(A) at 768A-D as examples of measures of the reliability
of single witnesses upon whom evidence of identification depends.
[7] With
all these preliminary observations of the learned judge I cannot but
wholeheartedly agree.
1
However when I come to examine the substance of his judgment I am
regretfully bound to conclude that they were honoured in the
breach
rather than the observance.
[8] Demeanour,
it seems, did play an important and perhaps, decisive role with the
trial court. The learned judge described the
complainant as
‘confident, straightforward, frank, ready and unhesitating’ and
‘a particularly impressive witness’. On
a later occasion he said,
‘I took careful stock of her in the witness box . . . I am
satisfied that she had the maturity and
objectivity to exclude that
influence [ie the effect of having been informed by the police before
identifying the appellant that
he had confessed to raping her] . . .
I am satisfied that she was honest and confident in her
identification of the accused’:
strong findings, and highly
subjective and speculative as regards her supposed maturity and
objectivity of which I find no particular
indication on a close
perusal of the record. (By contrast, the learned judge described the
demeanour of the appellant as ‘neutral’.)
These are however
reservations about the weight which the learned judge ascribed to the
subjective impression which the complainant
made on him. As he
pointed out, of more importance, was her evidence judged in the total
context including the probabilities.
[9] The
first aspect which struck me on reading the record (and borne out by
closer analysis) was the extent to which the complainant’s
evidence
in relation to opportunity for identification on the night in
question was adduced by leading questions to which neither
the court
nor the appellant’s counsel raised objection. The result was a
superficially presentable chronicle of events which
had its genesis
in undisguised prompting of the witness by the state counsel. There
is no mention of this aspect in the judgment
of either court.
[10] Then
the trial court made the crucial findings that ‘the lighting that
prevailed was good and such as to enable her properly
to observe the
appearance of her assailant. She was in the nature of things, in
close proximity to him. They were in each other’s
company for
several hours and she took note of his appearance. She was therefore
in a position to identify the accused as her assailant
when he was
subsequently presented to her at the police station, or, conversely,
to say that he was not her assailant’.
[11] The
evidence is however far more equivocal than the learned judge’s
summary would suggest – a brief opportunity while the
shack door
was being unlocked illuminated by the light of a street lamp on a
mast and two hours in a dark room in which only furniture
was visible
despite some light cast through a window by the said lamp or one like
it. All or almost all the time the complainant
was under great
emotional pressure and threatened by a gun and she had been warned at
the outset not to look at her abductors.
Her evidence both of
opportunity and the length and extent of such opportunity as she
enjoyed in the shack was never investigated
in evidence. Of course
her evidence of identification may have been both true and reliable
but in order to reach that conclusion
a much more careful and
detailed investigation was necessary.
[12] It
seems to me that an overall evaluation required consideration and
setting off of the following aspects against her proven
credibility
and her determined assertion that the appellant was one of her
assailants: the assailant was totally unknown to her;
the lighting
conditions and opportunity for identification were unfavourable and
restrictive; her assertion that the visibility
was sufficient and
that she made use of the opportunity is incapable of verification and
depends entirely on her say-so; she was
first asked to put her
observation and recollection to the test about fifteen months after
the event; the ‘test’ turned out
to be a charade of little and
perhaps no value, first because it was preceded by an allegation made
to her by a policeman that
the suspect had confessed to raping her
and, second, because instead of facing a properly constituted
identity parade, she was
simply confronted with the appellant and
asked to look at him from different angles to see whether she
recognised him; assuming
that the complainant was reliable in
testifying that she had furnished the police with the description of
her assailant which she
voiced in the witness-box─
‘
I
noticed that he was not tall and that he did not have long hair and
noticed the mark I indicated on his lower lip . . . the mark
that one
would normally see with the person that is drinking brandy a lot, the
pink mark shown on the lower lip . . . I noticed
his skin complexion
on his face was not that of a person with a light complexion . . . I
noticed that he had short hair . . . He
was not stout.’─
such
identifying features (other than the mark) were essentially bland and
neutral, while it was common cause that the distinctive
pink facial
mark was not to be seen on the appellant at the ‘identification’
or during the trial. This last feature must surely
be regarded as an
aspect favouring the appellant’s denial and I think the trial judge
misdirected himself in saying that it ‘may
be left out of
consideration in that her subsequent identification . . . was not
based thereon’.
[13] The
sad but inescapable fact was that there was no corroboration for the
complainant’s identification of the appellant and
no means of
reliably testing her account of such opportunity as she may have been
afforded before and during the abduction and
assault.
[14] The
trial judge made much of the alleged defects in the evidence of the
appellant as reasons for disbelieving him. Having perused
the record
I am unable to find any support for his criticisms.
[15] The
learned judge found that the appellant had ‘lied when he denied in
evidence that the complainant was brought to the police
station to
identify him’. He termed this ‘a material criticism of his
credibility’ which represented a belated attempt falsely
to deny
the reliability of the identification. But the record does not bear
this out:
‘
You
have referred to Miss N’s evidence that at the KwaZakhele police
station she was asked to look at you.---Yes, as far as what
she said,
it is so.
Did
she in fact come there and have a look at you?---I do not want to
tell a lie M’Lord, I never saw her.
Do
I understand you to say that that event never occurred?---No, I never
saw her M’Lord.’
That
this evidence amounted to a dishonest denial is in itself a dubious
conclusion; read with the evidence of the complainant it
appears
perfectly explicable since the appellant had no sight of the
identifying witness:
‘
Miss
N I would like to know something more about your pointing out of the
accused at the police station. Do I understand you to
say that you
accompanied Mjekula to the KwaZakhele police station?---Yes, it was
myself, Mjekula and my boyfriend M’Lord.
Were
you taken into the building?---Yes.
Where
were you taken to?---I stood outside the room in which the accused
was.
And
what happened?---The accused was taken into that room having been
brought from the other rooms and he was ordered to stand in
that room
and change positions, facing different directions, and I was
requested to look at him and I was asked whether he was
the person. I
confirmed that he was the man.’
[16] The
trial court rejected as ‘improbable to the extent of inevitable
rejection’ certain evidence of the appellant relating
to his arrest
by Mjekula which the judge summed up as follows:
‘
In
my view it is improbable to the extent of inevitable rejection that,
as the accused claimed, Mjekula would take him into custody
advising
him that he is a suspect, but without putting any specified charge
against him, look on the computer at KwaZakhele police
station to
determine whether there were any outstanding cases against the
accused, and when none was found, advise the accused
that the
computer at New Brighton police station would be consulted, and if no
outstanding cases against him were found, he would
be released, and
then return to advise the accused that there were four cases against
him, but apart from identifying the nature
of the offences in
question, not furnish him with any details of the charges in
question, and he, the accused, would only learn
of the charge
relating to the rape of Miss N. when the papers in that matter were
served on him.’
[17] This
was, however, an over-robust conclusion given that the appellant’s
evidence (although repeated under cross-examination)
was not
challenged and Mjekula did not testify. In addition I cannot, with
respect to the learned judge, agree that there is any
particular
weight of inherent improbability in the evidence to which he refers.
Finally, it must be said that the criticism, even
if well-founded,
hardly concerned a matter of much import in the context of the case.
[18] There
is some indication in the judgment of the trial court that it
regarded certain dishonest testimony of the appellant relating
to
charges other than those with which this appeal is concerned as
reflecting adversely on his overall credibility. There will
be
instances when such an evaluation is justified. This however was not
such a case because the charges were unconnected and it
was not
shown, even as a probability that the appellant’s proven falsehoods
extended beyond the scope of the charges to which
they were related.
[19] In
the light of the misdirections which I have drawn attention to, both
in the evaluation of the complainant’s evidence and
the assessment
of the appellant’s credibility, this court is at large to
reconsider the strength of the case against him.
[20] What
the learned judge should have treated as important (but did not
mention) was the following: the appellant’s case was
that he was
not present at the incident and was unable to remember, given the
lapse of time, where he had been or what he was doing
on the night in
question. If the appellant was innocent that inability was explicable
and reasonable. But if he was not, the defence
was patently very
difficult to disturb by cross-examination and, in truth, the state
counsel made no pretence of trying to disturb
it. In the
circumstances, the state case had to fail unless the evidence of the
complainant was of itself so clear and unanswerable
as to justify the
conclusion that the appellant’s version was, although without
apparent flaw on the face of it, nevertheless
false beyond a
reasonable doubt. Given all the questions which her evidence raised,
but did not answer, to which I have referred
above, it is plain that
the complainant’s evidence fell well short of that standard. In the
absence of a reliable identification
it was not possible to find that
the appellant’s evidence was false beyond a reasonable doubt. He
should have been acquitted.
[21] In
the result the appeal succeeds. The order of the court below is set
aside in so far as it relates to counts 1 and 2. In
its place there
is substituted a finding of not guilty and discharged in respect of
those counts.
[22] I
wish to add the following cautionary remarks. A complainant in a rape
case who is a single identifying witness needs and
deserves close
attention from police and prosecution. Unless she is given it her
chances of obtaining due justice are diminished.
In this case both
services failed her. Both lacked insight into what was required for a
successful prosecution. The police did
not prepare sketches or
photographs of the scene which might have provided evidence of the
conditions in which the offence occurred;
they informed the
complainant that the suspect had confessed to raping her before
asking her to identify him; and they made no
attempt to hold a proper
identity parade but instead confronted the complainant with the
suspect on his own and made a pretence
of asking her to identify him.
The prosecution was bedevilled by a surfeit of leading questions on
important issues and seems to
have failed to appreciate the need to
lay an adequate basis to support the complainant’s identification
of the suspect at the
scene of the crime. These matters require the
attention of the responsible authorities.
_________________
J
A HEHER
JUDGE
OF APPEAL
APPEARANCES:
FOR
APPELLANT: E Theron
ATTORNEYS: M
S Theron
PORT
ELIZABETH
C/o
Bloemfontein Justice Centre
FOR
RESPONDENT: M Mnyani
ATTORNEYS: M
R Thysse
PORT
ELIZABETH
C/o
Director of Public Prosecutions
BLOEMFONTEIN
1
As to the weight to be accorded to
demeanour see
President of the Republic
of South Africa and others v South African Rugby Football Union and
others
2000 (1) SA 1
(CC) at paras 77
to 79. As to the caution with which the evidence of a single witness
to identification must be approached the
cases are legion;
S
v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) (which has
parallels with the case before us) warrants mention.