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[2006] ZASCA 147
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S v Charzen and Another (344/05) [2006] ZASCA 147; [2006] 2 All SA 371 (SCA); 2006 (2) SACR 143 (SCA) (9 March 2006)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 344/05
REPORTABLE
In the matter between:
Jimmy H CHARZEN
First
appellant
Brian M MSIBI
Second
appellant
and
The
STATE
Respondent
Before:
Cameron JA, Jafta JA and Maya AJA
Appeal:
Friday
24 February 2006
Judgment:
Thursday 9 March 2006
Criminal law – Evidence – Identification – Error
in description of attacker – Error unignorable, and not
explained
– Doubt created about other aspects of identification
– Absence of physical evidence (fingerprints or retrieved
items)
creating reasonable doubt
Neutral citation: This judgment may be cited as S v Charzen [2006]
SCA 6 (RSA)
JUDGMENT
_____________________________________________________
CAMERON JA:
This appeal turns on the reliability of identification evidence. On
Tuesday 23 January 2001 at Chiawelo in Soweto, three armed
men
committed a bloody robbery at the home of the complainant, Mr
Alexius Lambert Amtaika, a political science lecturer at Vista
University. They took his Audi A4 motor vehicle, a wallet
containing R600 in cash, a mobile phone, books, cassettes and a blue
baby seat. One of the robbers threw his eleven-month old daughter,
who had been strapped into the seat, from the car before they
left.
In the course of their depredation two of them shot the complainant
– seemingly quite gratuitously, for he offered
no resistance.
He suffered five gunshot wounds to his legs and was fortunate not to
undergo an amputation.
Two days later, on Thursday 25 January 2001, two men were arrested
in Eldorado Park in connection with the Chiawelo robbery. Since
the
investigating officer was not called to testify, we do not know the
circumstances of their arrest, nor (so far admissible)
what led to
it. We only know that on 8 February 2001, after the complainant was
discharged from hospital, an identification parade
was held at
Protea Police Station in Soweto. Amongst nine other persons, three
suspects in connection with the Chiawelo robbery
were on parade.
They were the two appellants and one Julius Hlongwane, who had
apparently been arrested earlier.
The complainant identified two persons at the parade as the two
robbers who shot him. They were Brian Musa Msibi and Jimmy
Hlangabeza
Charzen, the two appellants. He could not identify the
third. His wife, who fled the scene, distressed but unharmed, was
unable
to make any identification at the parade, and was not called
to testify.
In June 2002 Msibi and Charzen stood trial in the Protea Regional
Court in Soweto as accused 1 and 2 on charges of robbery and
attempted murder, together with associated arms and ammunition
counts.
1
There were only two state witnesses: the complainant, and inspector
Luthuli, who was in charge of the identification parade.
Neither
accused offered any plea explanation, but both testified in their
own defence. They denied involvement in the robbery.
The regional
magistrate, Mr H Badenhorst, convicted both of robbery, and accused
2 (who the complainant said fired four of the
five shots) in
addition of attempted murder. Both were convicted of unlawful
possession of arms and ammunition. Applying the
minimum sentence
provisions of the
Criminal Procedure Act 51 of 1977
, he sentenced
accused 1 to effective imprisonment of 20 years, and accused 2 to 32
years.
The Johannesburg High Court (Masipa J, Tshiqi J concurring)
dismissed the appeals against conviction, but ordered that accused
2’s twelve-year sentence on the attempted murder charge run
concurrently with the other sentences, thus making both accused’s
effective sentence 20 years. The high court granted accused 2 leave
for this further appeal against conviction and sentence.
Shortly
before the hearing, accused 1 obtained similar leave.
Before us, as in the high court, the principal question was the
adequacy of the complainant’s evidence identifying the accused
as the two robbers who shot him; and to appreciate the argument on
their behalf it is necessary to set out the state’s case
in
more detail.
State case
The complainant was the sole witness to the robbery. He testified
that he arrived at his home and parked his car in the garage.
His
wife and daughter were with him. As he was locking and immobilising
the vehicle, he heard his dog barking and saw three armed
men
entering his property. One – whom he identified as the first
accused – ordered him to hand over his keys. While
accused 1
was searching him, a second robber – whom he identified as
accused 2 – shot his dog. Accused 1 ordered him
to lie down,
but while he was trying to do so, accused 1 shot him in his right
foot. He fell to the ground. Accused 2 then came
forward and fired
four further shots at him: in his left hip and calf, and on his
right leg and ankle. A third robber was at or
near the gate, but
did not enter the garage. The two robbers dragged him outside,
where they left him lying face up. Accused
1 could not start the
car. He returned and fired further shots into the ground next to
the complainant, who explained to him what
had to be done. The car
started. As accused 1 reversed he threw the toddler out (she landed
on the complainant’s chest),
picked up his two accomplices,
and sped off.
The complainant testified that he had ample opportunity to identify
two of the robbers. He saw accused 1 at close range several
times,
and had considerable time to look at accused 2 while he was lying
face-up outside his garage, pleading for mercy. The third
he could
not identify: the man did not enter the garage, but retired to the
gate to keep a look-out.
During the complainant’s ten-day stay in hospital (the date
unfortunately does not appear from the record), Inspector Swanepoel
took a sworn statement from him. Swanepoel did not testify, so we
do not have his account of the complainant’s apparent
physical
and mental state, but in cross-examination the complainant affirmed
that the statement recorded accurately what he told
Swanepoel and
that its contents were confirmed with him before he signed.
Was the complainant’s identification of the accused
reliable?
The complainant was emphatic that his identification was accurate.
He related that when asked in hospital whether he could identify
his
attackers, he told Swanepoel, ‘Yes, even in a million years
I’ll be able to identify them.’ During
cross-examination
he stated that not only did he have time ‘to
look at them thoroughly, but I had physical contact with them,
verbal contact
with them, and eye contact with them’. ‘All
I was interested [in] is to look at their faces, because I knew that
maybe
I will survive ... to help the police in drawing the identikit
of the people who came – who invaded my home, took my car and
shot me.’ What is more, as the magistrate pointed out in his
judgment, and the high court emphasised on appeal, the complainant
was a good witness: clear, coherent, specific and verbally
expressive.
But, as our courts have emphasised again and again, in matters of
identification honesty and sincerity and subjective assurance
are
simply not enough. There must in addition be certainty beyond
reasonable doubt that the identification is reliable, and it
is
generally recognised in this regard that evidence of identification
based upon a witness’s recollection of a person’s
appearance can be ‘dangerously unreliable’, and must be
approached with caution.
2
This case illustrates the risks.
In his statement to Swanepoel, the complainant ascribed one feature
only to each of his attackers, whom he had never seen before.
The
first – identified as accused 1 – was a ‘man with
dreadlocks’. The other – accused 2 –
‘had a
light complexion’. The trial confirmed that accused 2 was
light in complexion. But neither at the identification
parade, held
some sixteen days after the robbery, nor at trial did accused 1 have
dreadlocks. His hair was short.
On its own, this would not be remarkable, for dreadlocks (‘a
Rastafarian hairstyle in which the hair is twisted into tight
braids
or ringlets’)
3
are eminently removable; and indeed a criminal may deliberately
remove them to try to mask his identity. What is significant is
the
complainant’s response when challenged on the apparent absence
of dreadlocks. His response suggested that there may
have been no
dreadlocks at all:
‘
He was putting on something like you know,
something like that lady has on. It’s a – it was
something like a hat, but
– yes, of that type, yes.’
This proved to be a woollen hat, as worn by a person in court, pulled
down to the hairline. After conceding that ‘dreadlocks
and
that hat … are totally different things’, the
complainant proceeded:
‘
Well, to me what he was wearing is not very
important. To me the face mattered most, because I knew that I
cannot go for identity
parade to identify somebody who has got
dreadlocks, or who has got a hat. To me, what matters most is the
face. You cannot identify
someone by a hat or dreadlocks. The face
matters most.’
The complainant’s observation is correct: facial
characteristics are a more reliable and enduring source of
identification
than variable features such as hairstyle or clothing.
But that assertion – propounded repeatedly during his
cross-examination
– underscores the significance of his
mention of the dreadlocks. If they were immaterial to his
recollection, why did he
mention them at all? On the other hand, if
they were material, but there were no dreadlocks, his error is
unignorable.
The mystery was not cleared up during the complainant’s
evidence, for he neither insisted that there were dreadlocks during
the robbery (which must have been shaved off later), nor conceded
that he had made an error: instead, he attempted to minimise
the
importance of what was in his statement by insisting on the
irrelevance of non-facial features. In keeping with this approach,
counsel for the State urged us on appeal to find that the
complainant was an impressive witness overall, and that the
dreadlocks
were immaterial. But they cannot be dismissed, for the
complainant’s statement mentions them twice; and his very
articulacy
as a witness, and the precision of his recall in other
respects, make the unaccounted error the more obtrusive. It
unavoidably
raises the question of how reliable his recall was in
other respects. And it makes it the more regrettable that the
police officers
who arrested the accused were not called to testify,
since they would have been able to relate whether accused 1 had
dreadlocks
two days after the robbery. We shall never know.
If the complainant did err, his error may be explained in another
feature of his evidence, namely the time at which the attack
occurred. He testified very specifically that he returned at about
19h15, having left home at 18h30 to fetch his spouse in
Coronationville.
In his police statement, too, he gave the time as
19h15. When quizzed about visibility at this hour, he recorded that
there was
no electric light inside his garage, but that (a) the sun
was still shining; and (b) the street lights outside were on. When
the
cross-examiner suggested a contradiction, he insisted that in
his area the streetlights could be on at any time.
Yet, if the complainant was correct about the time, we must take
notice that more than a month after the summer solstice in Gauteng
the sun has already set by 19h15, and that dusk is settling in. The
absence of electric illumination inside the garage would have
deepened the gloom in which the complainant faced his attackers.
While outside there would have been more light, the unsettling
uncertainty must obtrude that he may have mistaken the nature and
appearance of his first attacker’s headgear because the
light
was bad. And if that is so, then there must be a measure of
perceptible doubt also about his identification of his attackers’
faces.
This is an unhappy conclusion, for by their own admission the two
appellants are friends; and the chance that from a twelve-person
line-up the complainant would have wrongly picked out two persons so
connected, who were arrested on the same occasion, in each
other’s
company, must be statistically small. But the dreadlocks issue
raises unavoidable doubt about the reliability of
the identification
on its own.
This is inevitable mainly because the only evidence the state called
about the robbery was the single testimony of the complainant.
There was no physical evidence: not a fingerprint, not a recovered
cellphone, nor wallet, nor purse, nor baby seat: nothing to
connect
the accused to the crime and thus to provide a measure of objective
assurance against the pitfalls of subjective identification.
The
greatest assurance of guilt must lie in such evidence, rather than
in identification on its own, which as this case shows
can be beset
by error and misdescription and doubt, in which case possibly and
even presumably guilty persons must walk free.
The appeal must succeed. The order of the court below is set aside.
In its place there is substituted:
‘The appeal succeeds. The accused are acquitted of the
charges.’
E CAMERON
JUDGE OF APPEAL
CONCUR:
JAFTA JA
MAYA AJA
1
Since the order in which the appellants appeared at the trial
created some confusion in the high court, and since the order in
which they are cited in the appeal has been reversed, it seems
clearest to refer to them as at the trial.
2
DT Zeffertt, AP Paizes and A St Q Skeen,
The South African Law of
Evidence
(2003) page 142.
3
Concise Oxford Dictionary.