Rex v Msumbwa (Criminal Appeal No. 158 of 1951) [1951] EACA 257 (1 January 1951)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY, Ag. President, LOCKHART-SMITH, Ag. Vice-President, and SINCLAIR, Ag. C. J. (Tanganyika Territory).

## REX. Respondent

#### ν.

# MARZUK SALIM MSUMBWA, Appellant

### Criminal Appeal No. 158 of 1951

(Appeal from decision of His Britannic Majesty's High Court for Zanzibar-Sir John Grav, C. J.)

Identification—Photographs shown to witnesses who subsequently picked out accused at identification parade—Procedure improper—Archbold Criminal Pleading.

The appellant was convicted before His Britannic Majesty's High Court of Zanzibar of robbery with violence. Prior to identification of the accused at a parade for that purpose, the prosecution witnesses were shown to witnesses by the police.

*Held* (21-9-51).—This method clearly offends against the proper procedure set out in Archbold's Criminal Pleading (1939), p. 347.

Appeal dismissed.

Appellant absent, unrepresented.

Respondent absent, unrepresented.

JUDGMENT (delivered by SIR NEWNHAM WORLEY, Ag. President).—This is an appeal from a conviction had before His Britannic Majesty's High Court for Zanzibar of the offence of robbery with violence, the appellant having been sentenced to seven years' imprisonment with hard labour.

The grounds of appeal are in substance-

- (1) that the conviction was unreasonable and not supported by the evidence, based on the allegation that the appellant was never satisfactorily identified as one of the two robbers: - (2) that persons asked to identify the appellant at an identification parade had been shown his photograph beforehand; - (3) that the police witnesses who identified him as one of two persons seen running away from the scene of the robbery were lying; - (4) that his alibi was not accepted.

Grounds 1, 3 and 4 are purely questions of fact. The evidence relevant to them is all carefully set out in the judgment of the learned Chief Justice and fully considered by him before arriving at his conclusion as to the guilt of the appellant. It is sufficient for us to say that having carefully considered the judgment and the evidence on the record we see no grounds for interfering with the conclusion reached.

The second ground refers to the fact that one of the prosecution witnesses, a Customs watchman, who identified the appellant at an identification parade, had previously been shown by the police some photographs and picked out the appellant as being the man he had seen talking to the victim of the robbery outside

the Customs Office, and that photographs were also shown to two other prosecution witnesses who also subsequently picked out the appellant at an identification parade. In the course of the trial it transpired that these photographs were shown to the witnesses after the appellant had been arrested or after it had been decided to arrest him. As the learned Chief Justice pointed out this method of identification clearly offends against the proper procedure as set out in Archbold's Criminal Pleading (1939), page 347, but the objection thereto goes to the weight and not to the admissibility of the evidence of identification. But he goes on to note that in fairness to the appellant such little value attached to their subsequent identification that it ought not to be considered in evidence at all. The appellant was, however, also identified by two police constables who had not been shown photographs and to whose identification no objection could be made.

The judgment which carefully and sympathetically reviews all that could be said in favour of the appellant also refers to the fact that it was accidentally disclosed in the course of the trial that the photographs in question were kept in a book in the possession of the police. In this connexion the learned Chief Justice says: -

"I do not know whether at the time the assessors appreciated the possible significance of this reference to a book of photographs. In my summing up to them I made no reference to it and did not caution them against prejudice regarding it because that summing up took place six days after this particular piece of evidence had been given and J thought reference to that evidence and cautioning of the assessors against prejudice might have precisely the opposite effect to what I intended,"

and he refers to the judgment of the Court of Criminal Appeal in England in Rex v. Wright (1934), 25 Cr. App. R. 35. We think, with respect, that this was entirely correct in the circumstances.

The defence, as we have said, was an alibi supported by three witnesses called for the defence and by one of the Crown witnesses. As to this last the learned Chief Justice comments: "He was a witness who impressed me most unfavourably and as being unworthy of credit except in so far as his evidence was corroborated or undisputed". Of the three defence witnesses he records that they contradicted each other and the appellant, that each of them had Criminal records and that he had seldom been so unfavourably impressed by the demeanour of witnesses as he was by the demeanour of these three.

It is impossible for this Court to say that the learned trial Judge was not justified in repecting this evidence, and the appeal is dismissed.