Joseph Lubasi v The People (Appeal No. 11 of 1971) [1971] ZMCA 6 (18 May 1971)

I JOSEPH LUBASI v THE PEOPLE (1970) ZR 100 (CA) COURT OF APPEAL DOYLE CJ, 10 PICKETT AND MAGNUS JJA 18TH MAY 1971 (Appeal No. 11 of 1971) Flynote Evidence - Witnesses - Witnesses altering statements - Court to approach 15 such evidence with care. Evidence - Interference with evidence - Duty of investigating officers. Headnote The appellant was convicted of the offence of dangerous driving. Two persons who were alleged to have been passengers of the appellant made statements to the police stating that the appellant was not the 20 driver. They subsequently altered the statements and the original statements were destroyed. It was not clear whether the magistrate had directed himself to approach their evidence with care. On appeal: I Held: 25 ■ ■ (i) Where witnesses alter their statements, the magistrate must in dealing with the evidence of such witnesses direct himself that he must approach their evidence with care. (ii) All investigating officers must know that they are not entitled to interfere with evidence, to tear up statements which are made 30 because they thought subsequently that they might not be true. ■ I Judgment Doyle CJ: delivered the judgment of the court: In this case the appellant was convicted of the offence of dangerous driving. The evidence against him depended on two persons, alleged to have been passengers, with him. Each of these persons gave statements originally 35stating that the driver was not the appellant. They subsequently altered these statements and alleged that they had been induced to make them by the appellant himself. In dealing with the evidence of such witnesses the magistrate must direct himself that he must approach the evidence with care. In this particular case it is not entirely clear whether the trial 40 magistrate did so direct himself. We would, however, possibly have been inclined not to interfere but for one other point, that is that at some stage in the investigations in this case the police officer tore up two statements made by these two persons. These were the original statements which did not implicate the appellant. We do not know what was in these statements. 45 They may have been bare statements that the appellant was not the driver. ■ ■ 1971 ZR p101 DOYLE CJ They may have been statements which contained material from which one could have ascertained whether or not the statements were correct. We do not consider that a case which is brought in these circumstances can be said to be satisfactory. I We would like to make it quite plain to all investigating officers that 5 they are not entitled to interfere with evidence, to tear up statements which are made because they thought subsequently that they might not be true. This trial was not a satisfactory trial. We do not criticise the magistrate, but we criticise the prosecution. We allow the appeal I and quash the conviction and sentence. 10 Appeal allowed