S v Bailey

JurisdictionSouth Africa
Citation2007 (2) SACR 1 (C)

S v Bailey
2007 (2) SACR 1 (C)

2007 (2) SACR p1


Citation

2007 (2) SACR 1 (C)

Case No

A215/2000

Court

Cape Provincial Division

Judge

Desai J, Griesel J and H J Erasmus J

Heard

July 31, 2000

Judgment

August 31, 2000

Counsel

J L Vismer for the appellant.
S M Galloway for the respondent.

Flynote : Sleutelwoorde B

Appeal — Powers of Court on appeal — Powers of Court of appeal to interfere with factual findings of trial court strictly limited — In absence of misdirection on facts, presumption that trial court's evaluation of factual evidence correct — Trial court having advantage of seeing, hearing and appraising witness — Court of appeal entitled to interfere with trial court's C evaluation of oral testimony only in exceptional cases — Appellant having to convince Court of appeal that trial court wrong in accepting evidence of State witnesses — Reasonable doubt not sufficing to justify interference with trial court's findings.

Evidence — Of identification — Dock identification — Just as leading questions D in evidence-in-chief not per se inadmissible, so dock identifications also not inadmissible per se, even though both leading questions and dock identifications suggesting desired answer — Ample authority for proposition that dock identification by itself having limited, if any, evidential value — Completely unnecessary, therefore, to go one step further by ruling such identification inadmissible 'save in special circumstances'. E

Evidence — Admissibility of — Evidence of identification — Dock identification following identification parade — Whether dock identification of accused must be excluded where evidence of prior parade identification of accused by same witness having been excluded — Where State able to show that dock identification based on observations independent of any F irregular identification parade, dock identification admissible — In casu in-court identification based on complainant's observations of accused other than at identification parade — Accordingly, dock identification admissible.

Evidence — Of identification — Identification parade — Rules relating to — Rules of practice evolving to ensure as far as possible that identification of . G

2007 (2) SACR p2

suspect at identification parade fair and reliable, and to enhance A evidential cogency of parade identification — These rules having no statutory force — Non-compliance with any specific rule not ipso facto depriving identification parade of all evidential weight whatsoever — Breaches of rules affecting either admissibility of evidence or its weight, or both admissibility and weight — Court having to consider whether challenge B against such identification directed at admissibility or weight of evidence obtained at identification parade.

Evidence — Of identification — Identification parade — Rules relating to — Rule 8 — Rule providing that suspect and other persons in parade should be more or less of same build, height, age, appearance and occupation and C that they should be similarly dressed — Rule not prescribing absolute standard to be complied with to the letter; rather, rule a guideline in quest for fairness and reliability — This precisely the reason for qualification 'more or less' — In casu, other members of parade sufficiently similar to appellant — Rule 8 accordingly not violated. D

Headnote : Kopnota

The appellant was convicted in the High Court on one count each of murder, attempted murder, robbery with aggravating circumstances, illegal possession of a firearm and illegal possession of ammunition. He was sentenced to an effective 24 years' imprisonment. In an appeal to the Full Bench the convictions were assailed on the basis that the identification of the appellant E by the complainant in the attempted-murder count was unreliable. In particular, it was argued that, since the trial Court had ruled inadmissible evidence of identification at an identification parade, the subsequent dock identification by the same witness who had attended the parade should also have been ruled inadmissible. Argument was also presented on whether or not the rules applicable to identification parades had been F followed, the trial Court having found that the make-up of the identification parade had not complied with the rules for identification parades, in particular, it had violated rules 5 and 8. Argument was also presented on the question of the admissibility or otherwise of dock identifications per se. As to the latter, the appellant contended, relying on S v Maradu 1994 (2) SACR 410 (W) at 413j - 414a, that, since a dock identification, like a leading question, suggested the answer desired, and since leading questions in examination-in-chief G were inadmissible, dock identifications should also be inadmissible, save in special circumstances. As to sentence, it was argued that the term of imprisonment imposed was shockingly inappropriate.

Held, that the powers of a court of appeal to interfere with the factual findings of a trial court were strictly limited. If there had been no misdirection on the H facts there was a presumption that the trial court's evaluation of the factual evidence was correct. Bearing in mind the advantage the trial court had in seeing, hearing and appraising a witness, it was only in exceptional cases that the court of appeal would be entitled to interfere with the trial court's evaluation of oral testimony. In order to succeed on appeal the appellant would have to convince the court of appeal that the trial court had been wrong in accepting the evidence of the State witnesses; a reasonable doubt I would not suffice to justify interference with the trial court's findings. (Paragraph [16] at 8b - e.)

Held, further, that the trial Court had found that the complainant was an extremely good witness who had given her evidence in an honest, straightforward and credible manner. The record amply supported these findings. There was also ample evidence that she had had adequate opportunity for J

2007 (2) SACR p3

accurate observation at the scene, which had been well lit at the relevant A time. In addition, there was material corroboration for her version in the evidence as a whole. (Paragraphs [17] - [18] at 8e - 9c.)

Held, further, regarding the admissibility of dock identifications per se, that the dictum upon which the appellant relied was not only obiter, but also based on an incorrect premise. In fact, leading questions in examination-in-chief were not inadmissible per se. (Paragraph [24] at 9j - 10b.) B

Held, further, there was ample authority for the proposition that a dock identification by itself had limited, if any, evidential value. It was completely unnecessary, therefore, to go one step further by ruling such an identification inadmissible 'save in special circumstances'. (Paragraph [25] at 10b - d.)

Held, further, as to the question whether the dock identification of an accused C had to be excluded where evidence of a prior parade identification of the accused by the same witness had been excluded, that the in-court identification of the accused had been based on the complainant's observations of the appellant other than at the identification parade. Accordingly, the argument against the admissibility of the dock identification could not be upheld. (Paragraph [28] at 11c - d.) D

Held, further, that, in any event, the identification of the appellant by the complainant in Court was not in fact a dock identification. This was so because the trial Court had erred in excluding all the evidence relating to the identification parade. (Paragraph [29] at 11d - e.)

Held, further, that s 37(1)(b) of the Criminal Procedure Act 51 of 1977 provided the only statutory basis for the holding of identification parades, but it did not prescribe the requirements for the admissibility of evidence obtained E from such parades. Certain rules of practice, however, had evolved to ensure as far as possible that the identification of a suspect at a parade was fair and reliable, and to enhance the evidential cogency of parade identification. (Paragraph [33] at 12b - d.) (These rules are set out in Du Toit et al Commentary on the Criminal Procedure Act 'Rules of practice for identification parades' 3-11 - 3-25.) F

Held, further, that in casu there had been eight persons in the parade and, accordingly, the parade had complied with rule 5. (Paragraph [34] at 12d - e.)

Held, further, as to rule 8, that it could not be found on the evidence on record that the other members of the parade were not sufficiently similar to the appellant. The line-up had constituted a fairly representative, if limited, G sample of the younger male population of the townships of the Western Cape. Rule 8 did not prescribe an absolute standard that must be complied with to the letter; rather, it was a guideline in the quest for fairness and reliability. That was precisely the reason for the qualification 'more or less' of the same appearance, etc, in the rule. Rule 8 had accordingly also not been violated. (Paragraphs [40] and [42] at 13h - j and 14e - g.) H

Held, further, that it was important to note that these rules had no statutory force, and that non-compliance with any specific rule did not ipso facto deprive an identification parade of all evidential weight whatsoever. Depending on the circumstances of each case, breaches of the rules might affect either the admissibility of the evidence or its weight, or both admissibility and weight. It was therefore necessary for a court to consider, in each case where evidence regarding such identification was challenged, whether the challenge I was directed at the admissibility or the weight of the evidence. That enquiry would determine, in turn, whether a trial-within-a-trial was to be held or not. (Paragraphs [36] and [39] at 12h - 13...

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12 practice notes
  • S v Tandwa and Others
    • South Africa
    • Supreme Court of Appeal
    • 28 March 2007
    ...vacated as moot, Ditson v California 371 US 541 (1963). [53] Dock identification was thus approached by the full bench in S v Bailey 2007 (2) SACR 1 (C) paras 24 - 28, quoting SE van der Merwe 'Parade-uitkennings, hofuitkennings en die reg op regsverteenwoordiging: Enkele grondwetlike persp......
  • Eyewitness evidence and eyewitness science: Whether the twain shall meet?
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...64 expert psychologists from the US, the UK, Canada, Germany, Australia, the 22 S v Carolus 2008 (2) SACR 207 (SCA).23 S v Bailey 2007 (2) SACR 1 (C).24 SM Kassin, PC Ellsworth and VL Smith ‘The “general acceptance” of psychological research on eyewitness testimony: A survey of experts’ (19......
  • S v Molawa; S v Mpengesi
    • South Africa
    • Invalid date
    ...D applied RAF v Maruga [2003] 2 All SA 148 (SCA): referred to Rex v Majerero and Others 1948 (3) SA 1032 (A): referred to H S v Bailey 2007 (2) SACR 1 (C): referred S v Calitz en 'n Ander 2003 (1) SACR 116 (SCA): dictum in para [12] applied S v Frazenburg and Others 2004 (1) SACR 182 (E): r......
  • The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?
    • South Africa
    • Juta South African Criminal Law Journal No. , November 2020
    • 3 November 2020
    ...grand total of 1 120) 23–24. 4 Mohamed supra (n1) at paras [14]–[15]. Also see Mohunram v NDPP (L aw Review Project as Amicus Cur iae) 2007 (2) SACR 145 (CC).5 M Cowling ‘Fighting organised cri me: Comment on the Preventio n of Organised Crime Bill 1998 ’ (1998) 11 SACJ 350 at 369.6 It mus......
  • Request a trial to view additional results
9 cases
  • S v Tandwa and Others
    • South Africa
    • Supreme Court of Appeal
    • 28 March 2007
    ...vacated as moot, Ditson v California 371 US 541 (1963). [53] Dock identification was thus approached by the full bench in S v Bailey 2007 (2) SACR 1 (C) paras 24 - 28, quoting SE van der Merwe 'Parade-uitkennings, hofuitkennings en die reg op regsverteenwoordiging: Enkele grondwetlike persp......
  • S v Molawa; S v Mpengesi
    • South Africa
    • Invalid date
    ...D applied RAF v Maruga [2003] 2 All SA 148 (SCA): referred to Rex v Majerero and Others 1948 (3) SA 1032 (A): referred to H S v Bailey 2007 (2) SACR 1 (C): referred S v Calitz en 'n Ander 2003 (1) SACR 116 (SCA): dictum in para [12] applied S v Frazenburg and Others 2004 (1) SACR 182 (E): r......
  • LT Real Estate CC v Venketsamy
    • South Africa
    • KwaZulu-Natal Local Division, Durban
    • 9 October 2020
    ...v Hadebe & others 1998 (1) SACR 422 (SCA); S v Monyane & others 2008 (1) SACR 543 (SCA); S v Francis 1991 (1) SACR 198 (A); S v Bailey 2007 (2) SACR 1 (C); R v Dhlumayo & another 1948 (2) SA 677 [2] Following a request for reasons, the magistrate filed a notice dated 30 May 2016 stating tha......
  • S v Molawa; S v Mpengesi
    • South Africa
    • South Gauteng High Court, Johannesburg
    • 31 May 2010
    ...an appellate court will not readily interfere with such findings. See S v Robinson and Others D 1968 (1) SA 666 (A); and S v Bailey 2007 (2) SACR 1 (C). The failure by the trial court to make such findings, and to furnish reasons for its judgment, will, once more, hamper the reviewing judge......
  • Request a trial to view additional results
3 books & journal articles
  • Eyewitness evidence and eyewitness science: Whether the twain shall meet?
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...64 expert psychologists from the US, the UK, Canada, Germany, Australia, the 22 S v Carolus 2008 (2) SACR 207 (SCA).23 S v Bailey 2007 (2) SACR 1 (C).24 SM Kassin, PC Ellsworth and VL Smith ‘The “general acceptance” of psychological research on eyewitness testimony: A survey of experts’ (19......
  • The overlap between the common law and Chapter 4 of the Prevention of Organised Crime Act: Is South Africa’s anti-gang legislation enough?
    • South Africa
    • Juta South African Criminal Law Journal No. , November 2020
    • 3 November 2020
    ...grand total of 1 120) 23–24. 4 Mohamed supra (n1) at paras [14]–[15]. Also see Mohunram v NDPP (L aw Review Project as Amicus Cur iae) 2007 (2) SACR 145 (CC).5 M Cowling ‘Fighting organised cri me: Comment on the Preventio n of Organised Crime Bill 1998 ’ (1998) 11 SACJ 350 at 369.6 It mus......
  • Recent Case: Criminal procedure
    • South Africa
    • Juta South African Criminal Law Journal No. , September 2019
    • 6 September 2019
    ...fai l to appear i n court should he not be arrested (Louw at 187d-e).In t he second judgment, Charles v Minister of Safety and Security 2007 (2) SACR 137 (W), the decision in Louw was rejected as incorrect (at 143j). In Charles the court found that a peace off‌icer was given the right to ma......

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