S v DHLIWAYO & ANOR 1985 (2) ZLR 101 (S)

Flynote

Evidence — extra — curial statements — challenge — accused's evidence unsatisfactory — need remains to assess admissibility in the light of objective factors indicating possibility of police misconduct — confirmation — no attempt by police to obtain confirmation — weight to be given — identification — it is not sufficient that the identifying witness be credible, it is necessary in addition that the circumstances under which the accused was observed were conducive to satisfactory identification.

Headnote

Where an extra-curial statement remains unconfirmed, the court should not admit it purely on the basis of the unsatisfactory nature of the appellant's evidence. It is necessary to examine exhaustively the objective facts, including any unsatisfactory features of police evidence, with a view to determining whether some undisclosed occurrence may possibly have been calculated to influence the appellant in making a statement. The fact that no attempt has been made to obtain confirmation of the statement is one of the factors to be taken into account.

Where an identifying witness has been shown to be careful and truthful, it is not always necessary for the witness to be asked to give details of every feature by which he identified the accused. Evidence of identification, however, must be treated with some caution and the reliability of the witness's evidence must be tested against the cumulative weight of such factors as lighting, visibility and eyesight, his proximity to the accused, his opportunity for observation, the extent of his prior knowledge of the accused, the accused's features and appearance, the result of any identification parade and the accused's evidence (S v Mthetwa 1972 (3) SA 766 (AD) followed).