Photo ruling delivers State’s latest defeat in treason trial

EIGHTEEN days of court proceedings and the testimony of eight State witnesses in the main Caprivi high treason trial on Monday came to nought for the prosecution team.

Having devoted 18 days in court, during which eight witnesses were called to testify before Judge Elton Hoff in an effort to have an album with photographs of the 119 men on trial admitted as evidence, the three-member prosecution team tasted defeat when the trial resumed after a six-week recess on Monday. The defeat came in a ruling in which Judge Hoff dismissed the State’s application to have the photo album admitted as an exhibit before court.The ruling should lay to rest an issue that has dominated trial proceedings from mid-May until the start of the recess at the beginning of August.At the same time, however, the prosecution has suffered another setback in its efforts to find a successful way to deal with one of the key points of dispute in the trial: the identity of those claimed to have been involved in a plot to take up arms to secede the Caprivi Region about eight years ago.Judge Hoff’s ruling means that the prosecution will not be permitted to use the album containing photographs of each of the 119 men to help State witnesses identify people that they mention in their testimony in court.”It may be that this trial may be unique regarding the number of accused persons before court, the number of charges preferred against them [278] and the time they have been in custody since their arrest during 1999, but does that mean that this court should close its eyes to established legal principles and other relevant authorities?” Judge Hoff remarked in the ruling.”What is indeed unique is that at no stage in the legal history of this country has a court been required to consider the admissibility of a photo-identification in court during the course of the trial.”Witnesses usually identify an accused person before arrest through a photo identification, after arrest by means of an identification parade, and during a trial by identifying an accused person in the dock in court, Judge Hoff said.With no identification parades conducted during the investigation of the high treason case, what the State was trying to do now was to introduce a fourth mode of identification, he added.In his view it would not only be “superfluous and irrelevant” to hold a photo identification in court during the trial and thereafter request a witness to point out the relevant accused person in court, but it would also be improper, the Judge said.He summarised the reason why the prosecution tried to get the photo album admitted as evidence in order to use it as an identification aid for its witnesses: “State witnesses recently experienced difficulties in identifying accused persons and the reasons provided were that the physical appearances of the accused persons have changed or that it is difficult to identify an accused person in such a large group.”However, where a witness claimed that people mentioned in his testimony were well known to him, a photograph should be of no assistance to the witness when he was asked to identify the mentioned person in court, Judge Hoff also said.Apart from not having convinced the Judge that the photographs were relevant and that it would be proper to use them in court, the prosecution also failed to meet the required standards of proving that the photos were original and authentic, Judge Hoff found.On this score he noted that not one of the State witnesses who gave evidence on the issue of the photo album testified that any particular photo was a true likeness of the person it purported to represent.The court could attach no weight to a photograph that had not been authenticated, Judge Hoff added.Monday’s ruling is the second major setback to the State’s prosecution strategy in the trial in the past year.The prosecution strategy received a first blow on December 8 last year, when Judge Hoff ruled that irregularities that resulted in the fairness of the trial being compromised took place when State witnesses were previously shown photographs of accused persons before their testimony and before they were asked to point out accused persons in court.It was in a bid to get past the hurdle that December’s ruling placed in its path that the prosecution then embarked on the attempt to get the photo album admitted as evidence before the court.The defeat came in a ruling in which Judge Hoff dismissed the State’s application to have the photo album admitted as an exhibit before court.The ruling should lay to rest an issue that has dominated trial proceedings from mid-May until the start of the recess at the beginning of August.At the same time, however, the prosecution has suffered another setback in its efforts to find a successful way to deal with one of the key points of dispute in the trial: the identity of those claimed to have been involved in a plot to take up arms to secede the Caprivi Region about eight years ago.Judge Hoff’s ruling means that the prosecution will not be permitted to use the album containing photographs of each of the 119 men to help State witnesses identify people that they mention in their testimony in court.”It may be that this trial may be unique regarding the number of accused persons before court, the number of charges preferred against them [278] and the time they have been in custody since their arrest during 1999, but does that mean that this court should close its eyes to established legal principles and other relevant authorities?” Judge Hoff remarked in the ruling.”What is indeed unique is that at no stage in the legal history of this country has a court been required to consider the admissibility of a photo-identification in court during the course of the trial.”Witnesses usually identify an accused person before arrest through a photo identification, after arrest by means of an identification parade, and during a trial by identifying an accused person in the dock in court, Judge Hoff said.With no identification parades conducted during the investigation of the high treason case, what the State was trying to do now was to introduce a fourth mode of identification, he added.In his view it would not only be “superfluous and irrelevant” to hold a photo identification in court during the trial and thereafter request a witness to point out the relevant accused person in court, but it would also be improper, the Judge said.He summarised the reason why the prosecution tried to get the photo album admitted as evidence in order to use it as an identification aid for its witnesses: “State witnesses recently experienced difficulties in identifying accused persons and the reasons provided were that the physical appearances of the accused persons have changed or that it is difficult to identify an accused person in such a large group.”However, where a witness claimed that people mentioned in his testimony were well known to him, a photograph should be of no assistance to the witness when he was asked to identify the mentioned person in court, Judge Hoff also said.Apart from not having convinced the Judge that the photographs were relevant and that it would be proper to use them in court, the prosecution also failed to meet the required standards of proving that the photos were original and authentic, Judge Hoff found.On this score he noted that not one of the State witnesses who gave evidence on the issue of the photo album testified that any particular photo was a true likeness of the person it purported to represent.The court could attach no weight to a photograph that had not been authenticated, Judge Hoff added.Monday’s ruling is the second major setback to the State’s prosecution strategy in the trial in the past year.The prosecution strategy received a first blow on December 8 last year, when Judge Hoff ruled that irregularities that resulted in the fairness of the trial being compromised took place when State witnesses were previously shown photographs of accused persons before their testimony and before they were asked to point out accused persons in court.It was in a bid to get past the hurdle that
December’s ruling placed in its path that the prosecution then embarked on the attempt to get the photo album admitted as evidence before the court.