R v Keher No. DCCRM-98-2 Judgment No. D3778 - [1998] SADC 3972

R v KEHER

Judge Robertson
Criminal

The accused seeks an order for the exclusion of the evidence of the identification of the accused by means of a photograph.
Mr Mead, counsel for the accused submitted that I should exercise my discretion (the Lee discretion) to exclude the evidence on the ground that it would be unfair to the accused to allow it go before a jury.
At pages 11 and 12 of the Record of Interview there were questions and answers relating to the accused participating in an identification parade. Initially the accused indicated his willingness to take part in an identification line-up. However, following some comments from Detective Niblett the accused indicated that although he could not see there was a problem with participating in a line-up he preferred to consult a lawyer first. Shortly afterwards in the interview he said:-
“At this stage, I might just refuse the option.”

Constable Clarke, who was involved in the interview said that although his initial understanding was that the accused wanted to seek advice from a lawyer at some time after the interview he reached the conclusion, following the answer which I quoted a moment ago, that the accused did not wish to be involved in an identification parade at any time. Constable Clarke acknowledged that it was the Police Department’s view that an identification parade was the best means of providing identification evidence. He said he understood that it was the best method because people involved are present physically in contrast to an image on a photo where a photographic identification is undertaken.
Detective Niblett said he was aware that an identification parade was the best means of obtaining identification evidence. He said in relation to the conversation at pages 11 and 12 of the Record of Interview that his understanding was that the accused was not seeking to speak to a solicitor immediately but that he would consult a solicitor sometime in the future. That was still his understanding when the interview concluded. His position was that if the accused still refused the line-up after obtaining advice from a solicitor then a photographic identification would be undertaken. He said that after the interview he no longer had any involvement in the matter. It appears that the matters relating to the charge were left in the hands of Constable Clarke.
I accept the evidence of Constable Clarke. In my view the comments of the accused regarding his involvement in an identification parade were in the end ambiguous. Constable Clarke cannot be criticised for reaching the conclusion that the accused no longer wished to be involved in an identification parade. It was a conclusion open as a result of what the accused said. I also accept the evidence of Detective Niblett. His understanding differed from that of Constable Clarke. As I said the words were ambiguous and as a result it was possible for different conclusions to be reached.
It is clear from many court pronouncements that identification resulting from an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] SADC 3972
Decision Date: 10 March 1998

CaseChat Overview and Summary

In the case of R v Keher, the court was presented with two primary issues concerning the admissibility of evidence in a criminal trial. The first issue pertained to the exclusion of photographic identification evidence due to the accused's ambiguous statements regarding participation in an identification parade. The second issue involved the exclusion of certain parts of the Record of Interview on grounds of fairness and the accused's right to know the nature of the offence under investigation.

The court meticulously examined the circumstances surrounding the accused's participation in an identification parade. The accused's statements were deemed ambiguous, allowing reasonable officers to reach different conclusions about his willingness to participate. The court emphasised the importance of identification parades as the most reliable form of identification evidence and noted that the accused's refusal to participate, if indeed it occurred, would further support the admissibility of the photographic evidence. The court concluded that the admission of photographic identification evidence was not unfair to the accused, despite the communication breakdown between police officers.

Regarding the exclusion of parts of the Record of Interview, the court found that the first eight questions were authorised by Section 38 of the Road Traffic Act, 1961. However, once the conversation entered an interrogation phase, the accused should have been informed of the nature of the offence under investigation to ensure fairness. Consequently, the court excluded parts of the Record of Interview that occurred before the accused was informed of the particulars of the offence. The court ruled that excluding only certain parts of the interview would render the remaining parts inadmissible, thereby excluding the entire Record of Interview down to, but not including, the specific question on line 26 at page 5, while admitting the remainder of the Record of Interview.

The court's final orders were to exclude the photographic identification evidence and specific parts of the Record of Interview as outlined in the judgment, ensuring that the trial would proceed with the remaining admissible evidence.

Orders