Masonik and Others v Rex (Cr. Apps. 13 to 33 of 1930.) [1930] EACA 153 (1 January 1930)

#### APPELLATE CRIMINAL.

#### Before THOMAS, J. and DICKINSON, J.

# KIPWENEI ARAP MASONIK AND TWENTY OTHERS (Appellants) (Original Accused)

$\cdot v$ .

### REX

## (Respondent) (Original Prosecutor). Cr. Apps. 13 to 33 of 1930.

Identification Parade-identification in Court.

Held: That in the cases under review beyond the mere statement that certain of the accused were taking part in the dacoity there were no reasons given for especially remembering those who were pointed out. There was no statement as to the features, clothing or arms;<br>nor as to the part which they were individually taking in the<br>dacoity. The accused were all being charged with the offence of<br>dacoity. If indentification un considered adequate then the Court would have no protection<br>against a dishonest witness and even where the witnesses were<br>honest sufficient allowance would not have been made for the possibility of error.

Hopley for appellants.

Doran, Acting Solicitor-General, for Crown.

THOMAS, J.-On the 11th of January of this year the Resi--dent Magistrate of Nakuru convicted twenty-three persons accused with the offence of dacoity under section 395 of the Indian Penal From these convictions twenty-one have appealed. With Code. the consent of counsel for the Crown and for the appellants all these appeals have been heard together.

The facts showed that members of the Lumbwa tribe being annoved by the loss of three head of their cattle, which they considered to have been stolen by members of the Masai tribe, started forth to search for them. Other members of the Lumbwa tribe joined the party of about twenty which had originally started forth until eventually some four hundred were assembled together.

They were seen by a third-grade policeman and told to stop. Doubtless as a result of his efforts no further advance was made that night. In the morning the company determined to proceed in spite of the efforts of the policeman (who was now joined by a tribal retainer and two others) to persuade them to desist. The four that I have mentioned went with the company still doing what they were able in the interests of law and order. The company eventually came to a place where there were a large number of cattle. The company of Lumbwa went amongst these cattle and started to drive them off. A number were in fact driven off and although most of the cattle eventually

managed to make their way back to their proper owners sometwenty-six never returned.

Throughout the third-grade policeman did all in his power to control and restrain the Lumbwa in their illegal proceedings, and there can be little doubt that it was largely due to his. efforts, that more serious results did not occur. I consider that the action of this policeman, Hashi Bin Hashim, a Somali, deserves the highest commendation.

From the facts that I have set out above and which arenot in dispute it is clear that the offence of dacoity was committed. No arrests were made at the time and it would have been most unwise to have attempted to make any under the. circumstances.

Subsequently various identification parades were held by estate owners in the neighbourhood and in consequence a number. of arrests were made. Included amongst those arrested were the present appellants. At their trial they all pleaded not guilty and denied that they took any part in the offence. Evidence of identification was given and the Magistrate being The first and in my satisfied with that evidence convicted. opinion the principal point taken by the advocate for the appellants was that that identification was not of such a natureas to have warranted the Magistrate to convict.

I have mentioned the holding of identification parades by certain estate owners. Those gentlemen were no doubt actuated. by the highest motives in the interests of justice, but owing to their inexperience in the way that such parades should be conducted the parades were considered by the Magistrate to be too unsatisfactory to allow him to accept them in evidence. He therefore rejected this part of the case for the Crown. I consider that he was correct in so doing, except so far as it might be contended in favour of the accused that witnesses might have been affected in any subsequent identification by seeing the men at these parades.

This evidence having been eliminated there was no evidence of identification, and without such evidence the case for the Crown failed.

The Magistrate then had recourse to the following method. of identification. Whilst some fifty of the accused were crowded together in the Court he allowed each witness in turn to indicatethose amongst their number that he recognized as having been present during the daeoity. Such amongst them as were picked. out by more than one witness in this manner he considered assufficiently identified. The Magistrate has referred to the spontaneous way in which the witnesses acted, but in saying thishe would seem to have forgotten the abortive parades which as I have mentioned above may have affected the witnesses. however unintentionally.

Modern methods of holding identification parades are so well known to persons connected with the Courts, and are so constantly carried out efficiently by the police, that it is unnecessary to enlarge on the essential requirements. These requirements were not complied with in this case. (See $R$ . v. Smith, 1. Cr. A. R., p. 203; and R. v. Dickman, 5 Cr. A. R. p. 142, $143.$ )

Under the heading of Identification I find in Best on Evidence, 15th Edition p. 161 the following: "For the purposes of identification, a particular defendant in the dock may be pointed out to a witness, who may be asked whether he is the man he meant." Watson, 1817, 32 Howel's State Trials at p. 74, where Lord Ellenborough said to counsel "You may ask in the most direct terms-You may say 'Look at the prisoners'." So also ruled by him in De Berenger. Stark, 129 n. cf. M. Maguire, 26, Howel's State Trials 203, 1795, where defendant was placed in Court among others " as nearly of his own condition in appearance as may be."

The volumes of the State Trials are not in the library and therefore I have not been able to refer to these cases.

An identification is a matter of opinion expressed by a witness and its value depends on the circumstances under which it is given. Where the accused is away from the dock and placed amongst people similar in dress, age and appearance it may be of the greatest significance. The opinion may be strengthened by reference to some particular or unusual feature or article of dress. But where none of these exist and the circumstances under which the opinion is expressed are against the accused then it may be reduced to so slight a value as to be negligible.

Accepting for the sake of argument that the Magistrate was justified in calling on the witnesses to identify the accused when in or about the dock the question arises as to whether such identification would without any other evidence incriminating the accused be sufficient. I cannot think so. Too much insistence cannot be placed on the proper identification of accused persons. And in the cases under review beyond the mere statement that certain of the accused were taking part in the dacoity there were no reasons given for especially remembering such of the accused that were pointed out. There was no statement as to the features, clothing or arms; nor as to the part which they were individually taken in the dacoity. The accused were all placed together in Court.

They were all being charged with the offence of dacoity. If identification under such circumstances were to be considered adequate then the Court would have no protection against a dishonest witness, and even where the witnesses were honest (as I have every reason to believe that the witnesses in this

case were) sufficient allowance would not have been made for the possibility of error.'

It has been stated in affidavits sworn by two gentlemen that several of the prisoners were in chains. The Crown has suggested that an adjournment should be granted to enable those affidavits to be dealt with. If on consideration I had come to the conclusion that this point seriously affected the appeal then I would have granted the Crown's application. But I consider after a careful perusal of the papers that the expressions. of opinion are of such slight value (apart from this question of chains) when taking all the admitted circumstances into consideration that it would be unsafe to act on such evidence alone.

Dickinson, J., who is absent on circuit has asked me to read his Judgment. In that it is in agreement with the decision I have given on this point it is unnecssary to deal with the other interesting points which the advocate for the appellants has raised.

All the appeals are therefore allowed and the convictions must be quashed. I do not consider it advisable to order new trials. Although I have not been able to consult with Dickinson, J., on this point, from what was stated at the hearing I understand that he would concur with me in this in view of the difficulty, and I might say impossibility, now to obtain any evidence of identification of the accused.

With regard to the two men who have not appealed, and against whom the evidence was as far as I can see identical with that I have just been considering, I would ask the Acting Solicitor General, the benefit of whose assistance the Court has had in this case to take immediate steps to bring them to the notice of His Excellency the Governor.

In view of the clear evidence that the offence of dacoity has been committed by some members of the Lumbwa tribe, I throw out the suggestion that this might be a case fit to be dealt with under the Collective Punishment Ordinance, Chapter 77 of the Laws of Kenya. But as to that the law officers are best able to advise.

DICKINSON, J.—This is an appeal brought by twenty-one Lumbwa who were convicted of dacoity before the R. M.'s Court at Nakuru.

As to the facts of the dacoity there is no question. The main grounds of appeal are based on an alleged irregularity in the method of identification.

There were sixty-three persons accused and they were all seated in the Court room (vide the Resident Magistrate's notes of judgment), and the witnesses for the Crown were asked to identify each person they had seen at the scene of the dacoity and taking part therein.

One by one the various witnesses identified various persons among the accused, and this was done by each in the absence of the others.

The Magistrate in his finding convicted those who had been identified by two or more witnesses. There were great difficulties. in the way of any other form of identification at the trial, as the Crown were unable to satisfy the Magistrate that various identification parades which were held on various dates last October and November were properly conducted. The evidence as to these parades showed grave irregularities and was such that the Magistrate in my opinion, quite correctly, declined to accept that there had been any proper identification at these parades and felt that the only evidence of this character which he would be safe in accepting was such as he himself saw with his own eyes in Court.

However, in my opinion this identification in Court was in reality a nullity. To convict a man because he is stated by two or more persons to be one of the participants in a crime, when each one of the persons they made their selection from were all in equal peril is, I feel, not satisfactory.

It has been held in $R$ . $v$ . Dickman that for an identification to be considered satisfactory there must be a free and fair selection of the accused out of a number of people other than the accused.

In the present case it was immaterial whom a witness selected; provided some other witness did the same that person' selected was held guilty.

It is asserted by the appellants' counsel, and sworn to by the affidavits of two Englishmen who have interested themselves in this matter, that there were ten of the sixty-three accused who were distinguished by being in chains (by this I suppose the deponents mean handcuffed), at the time of the identification in Court and that each one of these ten men were identified by two or more witnesses and were accordingly convicted.

It would appear certain that if a witness was in doubt he would naturally select a man distinguished in this way.

I feel thèrefore in all these circumstances that there is grave doubt whether all or any of the persons convicted really took part in the dacoity, and in my opinion the appeal should be allowed and the accused acquitted and released.

There were two men convicted for whom appeals have not been lodged, but in view of the above finding I am of opinion that their cases should be brought to the notice of His Excellency the Governor for consideration.