Rex v Samuel (Criminal Appeal No. 355of 1948) [1948] EACA 82 (1 January 1948)

### APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J.

### REX, Respondent (Original Prosecutor)

## DOUGLAS SAMUEL s/o KINYANJUI DANEL, Appellant (Original Accused) Criminal Appeal No. 355 of 1948

Criminal Law—Theft of a bicycle—Penal Code, section 269—Indentification parade-No evidence by police officer concerning the holding of parade-Sentence.

The complainant said he was pushing two bicycles along the road when he met the appellant who was an utter stranger to him. Having enlisted his aid they rode off together when the complainant's bicycle sustained a puncture. He went to have it repaired leaving the other bicycle with the appellant but on his return both had vanished.

Later the complainant pointed out the appellant at an identification parade. At his trial on a charge of theft, whilst there was evidence of an independent witness to corroborate that of the complainant, there was no evidence by a police officer as to how the identification parade had been conducted. The appellant was convicted, and on admitting to five previous convictions for serious offences was sentenced to 2 years' H. L. and $\hat{5}$ years' police supervision on release. On appeal

Held $(1-10-48)$ .—(1) That where identification parades are held it is most important that a responsible Police Officer should be called to testify as to the conditions under which it was held so as to exclude any possibility that the identification made in it was an unfair one.

(2) That otherwise the evidence accepted by the trial Magistrate supported the conviction.

(3) That in view of the appellant's criminal record the sentence was not excessive.

# Appeal dismissed.

## Appellant in person.

Modi for the Crown.

JUDGMENT.—In this case the appellant appeals against the conviction of the theft of a bicycle. The story told by the complainant, a schoolboy, is certainly an extraordinary one but the Magistrate who tried this case has believed his evidence which was corroborated in more than one material particular by another witness. The unsatisfactory feature of the case is, that although it appears from the evidence that an identification parade was held, no police witness was called to give evidence concerning it. It is most important that where parades are held that a responsible police officer should be called to testify as to the conditions under which it was held, so as to exclude any possibility that the identification made in it was an unfair one.

In the present case, however, the evidence of the schoolboy and the third prosecution witness is so definite on the question of identification, that if their evidence is accepted there can be no doubt as to the guilt of the appellant. In such a case as this it is impossible for an Appellate Court, which has not had the advantage of seeing the witnesses and studying their demeanour, to say that the trial Magistrate who has had that advantage was wrong in accepting their evidence.

The appellant also appeals again his sentence, but in view of his bad criminal record, this was in no way excessive.

The appeal is dismissed.