THE ATTORNEY -GENERAL v. JOSEPH ALOYSIUS AND OTHERS

009-SLLR-SLLR-1992-2-THE-ATTORNEY-GENERAL-v.-JOSEPH-ALOYSIUS-AND-OTHERS.pdf


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THE ATTORNEY-GENERAL
v.JOSEPH ALOYSIUS AND OTHERS
COURT OF APPEALS. N. SILVA, J, ANDD. P. S. GUNASEKERA, J.
C.A. APPLICATION NO. 1700/84
C. AVISSAWELLA NO. 27/82MAY 29 AND JULY 27, 1992.
Criminal Law – Identification – Identification Parade – Proper procedure -Propriety of Magistrate Addressing questions to the Witnesses at the paradebased on statements made during the investigation – Admission of identificationevidence.
The identity of the accused, as a person who committed the offence is a fact inissue at a criminal trial and evidence as to identification of the accused by awitness, is relevant and admissible.
The first statutory provision regarding the holding of identification parades wascontained in section 74(1) of the Administration of Justice Law No. 44 of 1973.This, provision was reproduced verbatim in the Code of Criminal Procedure ActNo. 15 of 1979, as section 124. But even without specific statutory provisionauthorising such procedure, identification parades were held as a step in theprocess of investigation.
An Identification parade is a means by which evidence of identity is obtained. Butit is certainly not the only means by which it could be established that a witnessidentified the accused as the person who committed the offence. Identificationcan take place, depending on the circumstances, even where in the course of aninvestigation the witness points out the person who committed the offence to thepolice. That evidence too would be relevant and admissible subject however toany statutory provision that may specifically exclude it at the trial.
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Rules contained in the local manual for judicial officers (1939), the Home OfficerOffice Circular and Code D now operative in England are designed to ensure thatan identification, by parade or otherwise, is done in a manner that is not unfair tothe suspect and that the witness has no aid or assistance other than hisrecollection of the appearance and physical characteristics of the person, whoseact or presence, is at issue, to identify the suspect.
The witness should not see or be reminded of any photograph or description ofthe suspect or, be given any other indication of his identity. If a witness is asked toidentify a suspect at a parade with reference to the act done by a person in thecommission of the offence, it would not be objectionable, in relation to theprovisions of the Manual, Circular or the Code.
The proper procedure to be adopted at an identification parade as stated byWalgampaya. J. in the case of Perera v. The State 77 NLR 224 should beunderstood only in the context of the objectionable features as noted in thatcase.
It would not be objectionable to request a witness at a parade, to identify anyperson, with reference to the acts or presence of the persons who participated inthe commission of the offence. However, in addressing such a request orquestion to a witness, reference should not be made to the appearance orphysical characteristics of any particular participant, as would facilitate hisidentification, at the parade. Where an objection is taken to evidence ofidentification that is otherwise relevant and admissible, the Court has to considernot only whether there is a breach of what is generally observed as the properprocedure but also the extent to which such breach has impaired the fairness ofthe proceedings. Such evidence of identification may be excluded only if theCourt finds that its admission would have an adverse effect on the fairness of theproceedings.
Cases referred to:
Perera v. The State 77 NLR 224, 229,231. 232.
Bartholomeusz v. Kularatne 34 NLR 317.
Queen v. Sivanathan 68 NLR 351.
Rex v. Hunter (1969) Criminal Law Review 262.'
Rex v. Howick(Q70) Criminal Appeal Review 403.
R v. Grannell (1990) 90 Criminal Appeal Reports 149.
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Perera v. The State 77 NLR 217 distinguished.
APPEAL from order of High Court Judge.
D. P. Kumarasinghe, D.S.G. for Attorney-General.
Ranjith Devapura, for accused Respondent.
Cur. adv. vult.
3rd September, 1992.
S.N. SILVA, J.
This is an application in revision filed by the Attorney-General fromthe order, dated 11.09.1984 of learned High Court Judge,Avissawella.
The three accused-respondents were indicted in the High Courtwith having committed the offences, of being members of an unlawfulassembly and of armed robbery under sections 140, 380 and 384 ofthe Penal Code. At the trial the prosecution sought to lead theevidence of two identification parades held on 19.10.1977 and23.11.1977. At the first parade the 1st and 2nd accused wereidentified and at the second, the 3rd accused were identified.Learned counsel appearing for the accused objected to evidencebeing led of the identification parades on the basis that they wereheld contrary to the procedure stated in the judgment ofWalgampaya, J. in the case of Perera v. The State m. The objectionwas based on the premise that the Magistrate holding the paradereferred to the contents of the statements made by the witnesses tothe police, in formulating the questions addressed to the witnesses atthe parades. Learned High Court Judge upheld the objection and bythe impugned order ruled out evidence of the parades.
In the case of Perera v. The state (supra) certain Prison Officerswere indicted with having committed the murder of a suspect, inprison, who had previously escaped from custody. The officersconvicted, were implicated by other prisoners and were identified ata parade held on 9.12.1969 by the Magistrate. At that parade therewere 53 prison officers, including 11 who were treated as suspectsand, 23 members of the public. It appears that learned Magistratehad, a few days prior to the parade, recorded the statements of thewitnesses (presumably in the course of the inquest) and thequestions addressed by him to the witnesses at the parade were
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based on statements made by these witnesses, to him. A perusal ofthe judgment of Walgampaya, J. shows that two features of thatparade were found to be objectionable :
The composition of the parade. It was observed that thecomposition was inappropriate and unfair since the ratio ofthe suspected prison officers to outsiders was just 1 to 2. Itwas observed as follows : “The situation looks more unfairwhen one sees that the identifying witnesses were personswho met the prisoners (suspects) day in and day out and ifanyone of these witnesses had a grudge against any prisonofficer he could well have pointed out that officer as havingcommitted some act of assault.” (at p.230).
That the questions put by the Magistrate to the respectivewitnesses were based on statements made to him five daysprior to the date of the parade. It was observed as follows :
"The questions by the Magistrate to those identifyingwitnesses were inappropriate for the reason that thosequestions would have enabled them to know what they hadtold the Magistrate on 24.9.69 and consequently they wouldhave been reluctant to resile from the position they hadtaken earlier, (at p.231).
It is also to be noted that the questions were based oncertain physical characteristics of the persons alleged tohave committed the assault. One question was to point outthe person who was referred to as “Boxing Mahattaya."Another question was to point out the person who wasreferred to as “Kannadi Peiris”.
On the basis of these objectionable features it was held that theprocedure adopted by the Magistrate was “quite unfair by theaccused who were tried for murder" (p.232). In this contextWalgampaya, J. observed that the "proper procedure” that theMagistrate should have adopted was
that he should have held several parades…;
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to have asked the particular witness to identify any suspectif he was in the parade;
if a witness pointed out any person, then only should theMagistrate have asked the witness whether that accused whomhe pointed out did anything, and
if so, the details of what he did. (p.232).
Learned Counsel for the accused-respondents relied on thematters stated in (b), (c) and (d). There is no objection in this case tothe composition of the parades. The questions addressed to thewitnesses in this case were in the following manner:
“If the person who was armed with a kris knife anddemanded the bag of money or the person who was armed witha pistol and walked about in the office or the person who wasarmed with a pistol and who stayed at the gate or the personwho broke the telephone, is in this parade, please point out thatperson.”
It is seen that the questions were based on the particular acts thatwere alleged to have been done by the persons who committed therobbery. As submitted by learned Deputy Solicitor General thequestions do not contain any reference to the physical characteristicsof the persons who are alleged to have committed the robbery so asto facilitate their identification. Indeed, the questions bear nocomparison with those addressed in the case of Perera v. The State.However, learned Counsel for the accused-respondents submittedthat on the basis of paragraph ‘b’ in the “proper procedure” as statedby Walgampaya, J. a witness should only be asked to identify anysuspect if he was in the parade. In terms of paragraphs ‘c’ and'd'witnesses should be asked to specify what was done by that persononly after the person is identified.
It has to be borne in mind that the observations were made byWalgampaya. J. regarding a “proper procedure" in a situation that istotally different from the facts of this case. The composition of theparade in the case of Perera v. The State 01 was plainly objectionable.
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Similarly the questions addressed to the witness, based onstatements made to the same Magistrate, had references mainly tophysical characteristics of the persons who were alleged to haveparticipated in the assault. The submission of learned DeputySolicitor General is that the observations of Walgampaya, J.characterised as “the proper procedure" should be understood in thecontext of the particularly objectionable features as to the manner inwhich the parade was conducted in that case.
Walgampaya, J. in his judgment (at p.229) observed that there isno principle which applies to the holding of identification parades, inthe Criminal Procedure Code or in the Administration of Justice Lawand in this context referred to the preamble and certain parts of theHome Office Circular No. 9/1969 as appearing in Archbold on“Criminal Pleading, Evidence and Practice” 38th Edition p. 653. Itappears that in England, Home Office Circulars were issued fromtime to time, that relate inter alia to the holding of identificationparades and, the currently operative circular was reproduced in therespective editions of Archbold. These circulars were not based onany provision of law and were meant to be used as guidelines.Subsequently, in England, the Police and Criminal Evidence Act wasenacted in 1984 and in terms of section 66 and 67 of that Act, theSecretary of State is empowered to issue Codes of Practice withregard to specific matters, including the identification of persons. Interms of this statutory provision a Code of Practice described asCode D, relating to identification of persons by Police Officers and bywitnesses was made in 1985 which was superseded by anotherCode with effect from April 1991. This Code is reproduced inArchbold, Criminal Pleading Evidence and Practice 44th Edition(1992) pages 1628 and 1631. Annex A of the Code relates toidentification parades (p.1637). The code is more specific andexhaustive than the Home Office Circular to which reference wasmade in the case of Perera v. The State (supra). It is also to be notedthat the Code does not contain the preamble to the Circular, whichwas couched in general terms, and was cited by Walgampaya, J.
As noted above, the only basis on which learned High CourtJudge ruled out the evidence of the identification parade is that thequestions addressed to the witnesses at the parade were based on
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statements that had been made by the witnesses in the course of theinvestigation. The questions relate only to the acts done by each ofthe persons in the commission of the offence. Hence the particularmatters to be considered are whether the decision in the case ofPerera v. The State (supra) can support the order of learned HighCourt Judge and whether "the proper procedure” as stated byWalgampaya, J. should be taken as laying down inflexible rules thatshould apply in all situations, any breach of which will result inevidence of the parade being excluded.
An identification parade is held for the purpose of ascertainingwhether any suspect arrested by the police in the course of aninvestigation, is the person seen by the witness as doing a particularact or being present, at or about the time the offence was committed.It is a step in the process of investigation and does not form part ofthe trial. The old Criminal Procedure Code did not contain anyprovision that authorised the holding of an identification parade by aMagistrate. However, it is seen that as a matter of practiceidentification parades were held for the purpose stated above. In thecase of Bartholemeusz v. Kularatne<2) (decided in 1932), Macdonell,C.J. held that “where at an identification parade the accused wasidentified by the witness who later stated in evidence that he was notquite certain of the identity of the accused, the evidence of a personwho was present at the parade was admissible to establish that theaccused was identified by the witness". Section 165 of the Manual forJudicial Officers issued in 1939 contains provisions regarding theholding of identification parades. In the case of Queen v.Sivanathan(3), the Court of Criminal Appeal held that it would be asuspicious circumstance if a witness were shown a photograph of theaccused at the police station prior to the identification parade beingheld. These matters clearly establish that even without specificstatutory provision authorising such procedure, identification paradeswere held for the purpose stated above, as a step in the process ofinvestigation.
The first statutory provision regarding the holding of identificationparades was contained in section 74(1) of the Administration ofJustice Law No. 44 of 1973. This provision was later incorporatedverbatim in section 124 of the Code of Criminal Procedure ActNo. 15 of 1979, which reads as follows :
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"Every Magistrate to whom application is made in that behalfshall assist the conduct of an investigation by making andissuing appropriate orders and processes of court, and may, inparticular hold, or authorize the holding of, an identificationparade for the purpose of ascertaining the identity of theoffender, and for such purpose require a suspect or any otherperson to participate in such parade, and make or cause to bemade a record of the proceedings of such parade.”
The identity of the accused, as a person who committed theoffence is a fact in issue at a criminal trial and evidence as to theidentification of the accused by a witness, is relevant and admissible.This is amply supported by the judgment of Macdonell, C.J. in thecase of Bartholomeuz v. Kularatne (supra). Section 124 of the Codeof Criminal Procedure Act referred to above, which requires aMagistrate to hold an identification parade, provides for the means bywhich such evidence is obtained. It is certainly not the only means bywhich it could be established that a witness identified the accused asthe person who committed the offence. Identification can take place,depending on the Circumstances, even where in the course of aninvestigation the witness points out the person who committed theoffence, to the police. That evidence too would be relevant andadmissible subject however to any statutory provision that mayspecifically exclude it at the trial.
Rules contained in the Manual for Judicial Officers, the HomeOffice Circular and Code D now operative in England, are designedto ensure that an identification, by parade or otherwise, is done in amanner that is not unfair to the suspect and that the witness has noaid or assistance other than his recollection of the appearance andphysical characteristics of the person, whose act or presence, is atissue, to identify the suspect. The question is whether the evidence ofa parade should be excluded solely on the basis that there is a failureto follow any provision of the Manual, Circular or the Code. Thejudgment in the case of Perera v. The State (supra) does not stateany decision in England or in this country, in which evidence of aparade was excluded solely on the ground that there has been afailure to follow any of these provisions. The decisions in the cases ofRex v. Hunterw and Rex v. Howick151 cited by Walgampaya, J. only
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support the proposition that it is usually unfair to ask a witness tomake an identification for the first time in court, because it is so easyfor a witness to point to the accused in the dock. On the contrary, theconsistent trend of authority, in England has been that, evidence ofan identification made by a witness is not excluded solely due to thefailure to follow the provisions of the Circular or the Code. In the Caseof R v. Grannell<6), the Court of Criminal Appeal of Englandconsidered whether evidence of a “group identification" done by awitness should have been excluded. In that case, the police hadarranged an identification parade for a suspect who was not incustody but due to certain circumstances the parade was not held asscheduled. Thereafter, when the suspect was due to appear in theMagistrate Court the witness, who was not informed of the presenceof the suspect, was positioned in the cafeteria on the court premisesfrom where she could see people coming in through the foyer. At onestage the suspect and certain other persons walked in and thewitness pointed out to the suspect and stated “I think that is the manbut wait a minute”. Then after a little while, she said “I am sure it ishim”. Lord Tucker in his judgment (p.153) observed that there werebreaches of the provisions of the Code in that none of that procedurewas followed. He further stated as follows".
“Accepting, as we do, that breaches occurred in this case, itbecomes a matter for the discretion of the trial judge onsubmissions made to him to decide whether or not to allow theevidence to be given. He has to consider in his discretionwhether the admission of the evidence would have such anadverse effect on the fairness of the proceedings that the courtought not to admit it."
It was held in that case that there was no unfairness to theaccused that resulted from the admission of evidence with regard tothe identification which took place in the circumstances statedabove.
Thus it is seen that in England, where rules have been made forthe conduct of parades in the form of a Code based on a statute,even a failure to follow all the relevant rules would not, per se, renderthe evidence of identification inadmissible. The Court of Appeal
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there, considered the admissibility of such evidence of identification,from the point of the provisions of section 78 of the Police andCriminal Evidence Act 1984 which gives a discretion to the court toexclude unfair evidence. We do not have a parallel legislativeprovision. However our courts have, similar to the courts in England,the jurisdiction at common law to exclude relevant and admissibleevidence where the admission of evidence would have an adverseeffect on the fairness of the proceedings. The decision in the case ofPerera v. The State (supra) is referable to this common lawjurisdiction of our courts. This is borne out by the fact that thedecision in.the case that the parade was vitiated, was preceded by aclear finding that the procedure adopted by the Magistrate was intheir Lordships view "quite unfair by the accused who were tried formurder” (p.232).
According to the "proper procedure” as stated in the judgment ofWalgampaya, J. a witness, should only be asked to identify a suspectif he was in the parade and only upon identification requested tostate what the suspect did. We have to observe that the manner offraming a question to a witness is not stated anywhere in the Manualfor Judicial Officers, the Circular or the Code operative in England.However, there are provisions in the negative, in that, they state as towhat should be excluded in the form of questions. In the Manualsection 165(a) it is stated as follows : “It is improper to point out thesuspect to the witness and to ask “is that the man?”. In the preambleto the Circular, cited by Walgampaya, J. (at p.229) it is stated thatprecaution should be taken to exclude any suspicion of unfairness orrisk of erroneous identification “through the witness attention beingdirected specially to the suspected person instead of equally to allthe persons in the parade”. The only relevant matter in the Code iscontained in section 12 (III) which states that witnesses should notsee or be reminded of any photograph or description of the suspector, be given any other indication of his identity. Thus it is seen that if awitness is asked to identify a suspect at a parade with reference tothe act done by a person in the commission of the offence, it wouldnot be objectionable, in relation to the provisions of the Manual,Circular or the Code, referred to above.
In the case of Perera v. The State (supra) as noted above, thequestions had references to the appearance and physical
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characteristics of the suspects. Therefore we are of the view that theobservation of Walgampaya, J. as to the “proper procedure" to beadopted at an identification parade should be understood only in thecontext of the objectionable features as noted in that case. Indeed,the procedure as stated by Walgampaya, J. that a witness shouldonly be asked to identify any suspect if he is in the parade, is withdue respect, one that may lead to practical difficulties in many cases.Where several persons are alleged to have committed an offence, if awitness is merely asked “to identify any suspect” he would beconfused and would not know what he is expected to do at theparade. His attention must necessarily be drawn to the acts done bythe different participants, in the course of committing the offence, soas to facilitate a proper identification. However, at all times cautionshould be taken to ensure that the questions do not contain anyindication of the appearance or physical characteristics of aparticular participant so as to facilitate an identification.
For the reasons stated above, we hold, that the identity of theaccused as the person who committed the offence is a fact in issuein a criminal case and evidence of identification is relevant andadmissible in the absence of any statutory provision excluding suchevidence. The rules contained in the Manual for Judical Officers andthe “proper procedure” stated by Walgampaya, J. in the case ofPerera v. The State (supra) are guidelines to ensure that anidentification parade is held in a manner that is fair to the suspectand that a witness does not have any aid or assistance as toidentification other than his recollection of the appearance andphysical characteristics of the person, whose acts or presence is atissue, to identify the suspect. It would not be objectionable to requesta witness at a parade, to identify any person, with reference to theacts or presence, of the persons who participated in the commissionof the offence. However, in addressing such a request or question toa witness, reference should not be made to the appearance orphysical characteristics of any particular participant, as wouldfacilitate his identification at the parade. Where an objection is takento evidence of identification that is otherwise relevant and admissible,the Court has to consider not only whether there is a breach of whatis generally observed as the proper procedure but also the extent towhich such breach has impaired the fairness of the proceedings.
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Such evidence of identification may be excluded only if the courtfinds that its admission would have an adverse effect on the fairnessof the-proceedings.
In this case, as noted above, the questions merely draw attentionof the witness to the particular acts that were done by the severalpersons who participated in the robbery. The questions do notcontain any indication as to the appearance or physicalcharacteristics of the persons who committed the offence. Thereforewe see no unfairness in the manner in which the parade wasconducted. Furthermore, it is to be noted that learned High CourtJudge did not come to a finding that the parade had been conductedin an unfair manner. The only basis of his decision is that there hasbeen a contravention of the “proper procedure” as stated byWalgampaya, J. in that the questions addressed to the witnesseshave reference to particular acts done by the persons who committedthe offence. We find that the basis stated by learned High CourtJudge is not correct in law. Therefore we set aside the order oflearned High Court Judge dated 11.09.1984 and direct that the trialproceed against the accused-respondents lay permiting theprosecution to lead evidence of the identification parades that wereheld.
D. P. S. GUNASEKERA, J. – I agree.Order of High Court Judgment set aside.