Rex v Nagunyu (Criminal Appeal No. 282 of 1948) [1948] EACA 71 (1 January 1948)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J. and DE LESTANG, J.

## REX, Respondent $\nu$ .

## KABOGO WA NAGUNYU, Appellant

Criminal Appeal No. 282 of 1948

Criminal Law—Defence (Control of Distribution and Rationing of Foodstuffs) Regulations, 1944, regulation 22 (1)—Trial—Identification of accused by one witness—Whether sufficient to convict—Possibility of genuine mistake.

The facts appear sufficiently from the judgment below.

Held (30-6-48).—Whilst the Appeal Court does not say that it can never be safe to convict an accused person on the evidence of one identifying witness, nevertheless, in such a case all the surrounding circumstances should point to the inevitability that the possibility of mistake can be excluded.

Appeal allowed. Conviction quashed and fine ordered to be remitted.

Kapila for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—This appeal turns solely on one point whether the Magistrate should have convicted on the evidence of one witness as to identification. The learned Magistrate accepted the evidence of Inspector Potgeiter and so do we but the learned Magistrate does not appear to have addressed his mind to the possibility of the Inspector having made a genuine mistake/We are by no means saying that it can never be safe to convict an accused person on the evidence of one identifying witness but in such a case all the surrounding circumstances should point to the inevitability that the possibility of mistake can be excluded. In this case it seems to us that all the surrounding circumstances point emphatically in the other direction. The Inspector only saw the driver of the lorry he stopped on the roadside at night for a brief moment by the light of a torch and thereafter a period of nearly two months elapsed before he had to put his powers of recollection to the test. All that he could remember was that the driver he had seen on the roadside was a tall man with a distinctive forehead. When the appellant was brought to the police station presumably because of some information received the Police Inspector came at once to the conclusion no doubt genuinely that he was the man. No identification parade was held. Had the Inspector picked out the appellant from a row of men of about the same height the possibility of mistake would have been lessened. Again the learned Magistrate in his judgment does not appear to have addressed his mind very fully to the defence evidence of an alibi in so far as it supports the theory that a genuine mistake may have been made—he has remarked that the alibi has only been supported by the evidence of one witness but he does not state his reasons why he disbelieved that witness. We can assume that he did so because he accepted the evidence of Inspector Potgeiter, but as we have already pointed out that evidence may be true in the sense that the Inspector has given it honestly and yet at the same time in genuine error.

It is strange that the prosecution did not call the owner of the lorry found on the roadside whose evidence might have provided a circumstance pointing to the correctness of the Inspector's identification, but in the absence of that evidence we cannot presume that had the owner being called his evidence would have supplied that circumstance which is what we think the learned Magistrate has done.

This Court has on many occasions pointed out the dangers of convicting an accused person on inadequate or defective evidence as to identification and we cannot arrive at the conclusion that such dangers are not present in the case now before us.

We accordingly allow this appeal and quash the conviction. The fine, if paid by the appellant, to be remitted.