REPORTABLE
CASE NO.: CC 32/2001
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
STATE
and
CALVIN
LISELI MALUMO + 116 OTHERS
CORAM: HOFF,
J
Heard on: 2009.04-06 – 08; 2009.04-20 – 24; 2009-04-27
– 29; 2009-05-18 – 20; 2009-05-26 – 28;
2009-06-01 – 04; 2009.06.08 – 11; 2009.0615 – 18;
2009.06.22; 2009.06.25; 2009.06.29 – 30; 2009.07.01;
2009.07.06 – 09; 2009.07.14 – 16; 2009.07.20 –
21; 2009.07; 2009.09.14 – 17; 2009.09.21 – 24;
2009.09.28 – 30; 2009.10.01; 2009.10.05 – 08;
2009.10.26; 2009.11.03; 2009.11.23; 2009.11.30
Delivered
on: 2010.03.01
JUDGMENT
TRIAL-WITHIN-A-TRIAL
HOFF, J: [1] This
Court has heard evidence in respect of a number of contested
admissions and confessions. Defence counsel objected to the
admissibility of these documents on the basis that these admissions
and confessions had not been deposed to by the accused persons freely
and voluntarily and that what was related in those documents were as
a result of what members of the security forces forced or told the
accused persons to narrate.
[2] Sections 217 and
219 A of the Criminal Procedure Act, 51 of 1977 deal with confessions
and admissions respectively and read as follows:
“Section
217. Admissibility of confession by accused -
(1) Evidence of any confession made by any person in relation to
the commission of any offence shall, if such confession is proved to
have been freely and voluntarily made by such person in his sound and
sober senses and without having been unduly influenced thereto, be
admissible in evidence against such person at criminal proceedings
relating to such offence: Provided -
(a) that a confession made to a peace officer, other than a
magistrate or justice, or, in the case of a peace officer referred to
in section 334, a confession made to such peace officer which relates
to an offence with reference to which such peace officer is
authorized to exercise any power conferred upon him under that
section, shall not be admissible in evidence unless confirmed and
reduced to writing in the presence of a magistrate or justice; and
(b) that where the confession is made to a magistrate and reduced
to writing by him, or is confirmed and reduced to writing in the
presence of a magistrate, the confession shall, upon the mere
production thereof at the proceedings in question –
(i) be admissible in evidence against such person if it appears
from the document in which the confession is contained that the
confession was made by a person whose name corresponds to that of
such person and, in the case of a confession made to a magistrate or
confirmed in the presence of a magistrate through an interpreter, if
a certificate by the interpreter appears on such documents to the
effect that he interpreted truly and correctly and to the best of his
ability with regard to the contents of the confession and any
question put to such person by the magistrate; and
(ii) be presumed, unless the contrary is proved, to have been
freely and voluntarily made by such person in his sound and sober
senses and without having been unduly influenced thereto, if it
appears from the document in which the confession is contained that
the confession was made freely and voluntarily by such person in his
sound and sober senses and without having been unduly influenced
thereto.
(words
inserted by S 13 Act 56 of 1979).
(2) The prosecution may lead evidence in rebuttal of evidence
adduced by an accused in rebuttal of the presumption under proviso
(b) to subsection (1).
(3) Any confession which is under subsection (1) inadmissible in
evidence against the person who made it, shall become admissible
against him -
(a) if he adduces in the relevant proceedings any evidence, either
directly or in cross-examining any witness, of any oral or written
statement made by him either as part of or in connection with such
confession; and
(b) if such evidence is, in the opinion of the judge or the
judicial officer presiding at such proceedings, favourable to such
person.”
“Section
219 A. Admissibility of admission by accused –
(1) Evidence of any admission made extra-judicially by any person
in relation to the commission of an offence shall, if such admission
does not constitute a confession of that offence and is proved to
have been voluntarily made by that person, be admissible in evidence
against him at criminal proceedings relating to that offence:
Provided that where the admission is made to a magistrate and reduced
to writing by him or is confirmed and reduced to writing in the
presence of magistrate, the admission shall, upon the mere production
at the proceedings in question of the document in which the admission
is contained –
(a) be admission in evidence against such person if it appears
from such document that the admission was made by a person whose name
corresponds to that of such person and, in the case of an admission
made to a magistrate or confirmed in the presence of a magistrate
through an interpreter, if a certificate by the interpreter appears
on such document to the effect that he interpreted truly and
correctly and to the best of his ability with regard to the contents
of the admission and any question put to such person by the
magistrate; and
(b) be presumed, unless the contrary is proved, to have been
voluntarily made by such person if it appears from the document in
which the admission is contained that the admission was made
voluntarily by such person.
(2) The prosecution may lead evidence in rebuttal of evidence
adduced by an accused in rebuttal of the presumption under subsection
(1).”
General
Principles
[3] The admissibility
of a statement, whether classified as an admission or as a confession
is determined by a separate enquiry during the trial, referred to as
a trial within a trial.
In such an instance as
a general rule the court decides the issue of admissibility without
having regard to the actual contents of such a statement. The
admissibility of an admission or a confession is usually contested by
alleging inter alia that such statement had not been made
freely and voluntarily in circumstances where the deponent had been
physically assaulted, or threatened to make such an admission or
confession or where the statement given had been induced by a promise
to the deponent which threat or promise had been induced by a person
in authority.
[4] The onus is on the
State to prove beyond reasonable doubt that an admission had been
made freely and voluntarily. In addition to the factor of
voluntariness, the State must prove that the accused person was in
his or her sound and sober senses and had not been unduly influenced
where it is alleged that the accused person had confessed to the
commission of an offence.
[5] The question of
admissibility is determined separately from the question of guilt. A
trial within a trial has been described as “insulating the
inquiry into voluntariness in a compartment separate from the main
trial,” (S v de Vries 1989 (1) SA 228 (A) at 233 H),
as a “watertight compartment, with no spill-over into the
main trial” (S v Sithebe 1992 (1) SACR 347 (A) at 351 (a
– b), and as a “one way glass” where one
is prevented from “peering into the trial within a trial
from the main trial” (S v Muchindu 2000 (2) SACR 313
(WLD) at 315 (g) ).
[6] The need for the
aforementioned description is that an accused person must be at
liberty to challenge the admissibility of an incriminating document
in a trial within a trial without fear of inhibiting his election
whether or not to testify on the issue of his alleged guilt.
(See S v Sithebe
(supra) at 351 (a) ).
[7] The ruling on
admissibility in a trial within a trial is interlocutory and may be
reviewed at the end of the trial in the light of later evidence.
(See S v Muchindu (supra) at 316 (f – g); S v Mkwanazi 1966
(1) SA 736 (A) at 742 H – 743 A).
[8] In Muchindu
Schultz J said in this regard at 316 g the following:
“This principle in
itself shows that subsequent evidence in the main trial may
decisively affect the determination of the issues in the
trial-within-the-trial. If subsequent evidence may, why not also
earlier evidence ? What if before anyone even asked for a
trial-within-a-trial the investigating officer in cross-examination
rejected a suggestion of the accused’s innocence by proudly
pointing out that after he had been beaten he confessed ? ”
and at 317 g – h
“Accordingly I rule
that during the course of this trial-within-a-trial reference may be
made to evidence already led in the main trial, and that the Court is
entitled to rely on such of that evidence as may be appropriate.”
[9] The general
principle, of not allowing the contents of a disputed statement to be
disclosed before the question of admissibility has been resolved by
the court, is subject to exceptions.
[10] The first
exception finds application in the instance where it is alleged by a
deponent that the contents of the statement is false and had been
provided to him by the police. In such an instance the State is
allowed to cross-examine an accused person on the contents of the
statement in order to show that the accused person was indeed himself
or herself the source of that information and not the police as
alleged by the accused. The object of allowing cross-examination on
the contents of the statement is not to show that the contents are
true but to attack the credibility of the accused person.
(See S v Lebone 1965
(2) SA 837 (A); S v Mafuya 1992 92) SACR 381 (W) ).
[11] The second
exception is manifested in the instance where the accused person
admitted having given the statement himself or herself, however
alleging that the contents of such a statement has been invented and
that it was done in order to avoid being assaulted further by the
police.
(See S v Gxokwe and
Others 1992 (2) SACR 355 (C).
[12] In Gxokwe
(supra) dealing with those instances described in the first
exception the Court expressed itself as follows on 358 (a –
c).
“As I understand the
rationale of those decisions, it is that such an allegation by the
accused is so much part and parcel of his attack upon the
admissibility of his statement, and so, plainly relevant to the
question of whether or not he was coerced or unduly influenced to
make the statement, that in the interest of fairness the State must
be permitted to explore by appropriate cross-examination the truth or
untruth of that particular allegation. The outcome of such
cross-examination is obviously highly relevant to both the accused’s
credibility as a witness in a trial within a trial, and the control
issue which is being considered in such a trial, namely the
voluntariness of the tendered statement. I emphasise that here has
to be a close logical correlation between the accused’s
allegation and the issues which are being considered in the trial
within a trial before it becomes legitimate to cross-examine him upon
the contents of his statement.”
(See also S v Latha
1994 (1) SACR 447 (A) ).
[13] The jurisdictional
requirements for admissibility of admissions and confessions (section
219 A and 217 of Act 51 of 1977 as amended) have been provided with
added impetus by the inclusion in the Namibian Constitution of the
provisions of Article 12 and in particular Article 12 (1)(a) the
right to a fair trial, Article 12 (1)(d) presumption of innocence,
Article 12 (1)(f) the right against self-incrimination and the right
to have evidence obtained in violation of Article 8 (2)(b) excluded.
[14] Article 8 (2)(b)
of the Namibian Constitution reads as follows:
“No persons shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment.”
Article 12 (1)(f)
provides inter alia that no Court shall admit in evidence
testimony which has been obtained in violation of Article 8 (2)(b).
[15] This Court as well
as the Supreme Court has in the past given a broad interpretation of
the provisions of Article 12 by giving meaning to those provisions
beyond the mere wording contained in the Article in order to give
effect to the principles of a fair trial and the values inherent in
that concept.
(See S v Malumo and
Others (2) 2007 (1) NR 198 at 211 A – E).
[16] It has been held
in relation to the requirement of a fair trial that an accused person
has the right not only to consult with a legal practitioner during
the pre-trial procedure but to be informed of such a right.
(See S v Kapita (1)
1997 NR 285 (HC); S v De Wee 1999 NR 122; S v Calvin Liseli Malumo
and Others (unreported) Case CC 32/2001 delivered on 14 February
2007).
This Court has a
discretion to allow or to exclude evidence obtained in conflict with
the constitutional rights of an accused person, (S v Shikunga and
Another 1997 NR 156 SC) and has a duty to enforce the fundamental
rights or freedoms guaranteed by the Namibian Constitution (S v
Scholtz 1998 NR 207 at 217 B).
[17] The non-compliance
of the Judges Rules is one of the factors to consider in determining
the issue of voluntariness of a statement or the fairness of a trial.
[18] In casu all
deponents to the disputed statements alleged that they had been
assaulted, threatened with assault and had been told by members of
the security forces (i.e. Namibian Police Force and Namibian Defence
Force) what to narrate to the magistrates who recorded the respective
statements. The State was on the basis of the first exception
(supra) allowed to cross-examine the deponents on the contents
of those statements.
[19] The presumption in
section 217 (1)(b)(ii) of Act 51 of 1977 has been declared
unconstitutional on the basis that it subverts the very essence of
the right to a fair trial and the incidents of that right articulated
in art. 12 (1)(a), (d) and (f) of the Constitution of Namibia. (See
S v Shikunga (supra) ).
Section 219 A of Act 51
of 1977 contains a similarly worded presumption (the
constitutionality of which has not yet been tested). It has been
accepted by the State that the presumption contained in section 219 A
(1)(b) would not withstand the test of constitutionality and would
follow the same route as the presumption contained in section 217
(1)(b)(ii) of Act 51 of 1977. The State thus started to lead
evidence in order to prove the admissibility of statements without
relying on the presumption contained in section 219 (A) (1)(b).
[20] The admissibility
of these statements (admissions and confessions) must be proved
beyond reasonable doubt.
[21] I shall now turn
to the individual statements of the respective accused persons and
shall briefly summarise the objections against admissibility, the
evidence presented and the submissions by counsel.
1. Calvin
Liseli Malumo
[22] The objection was
that the statement was not obtained freely and voluntarily since the
accused had been assaulted by members of the police force, was
threatened with further assaults should he fail to repeat to the
magistrate the statement provided to him, that he has not been
informed of his constitutional rights neither had he been warned in
accordance with Judges Rules. It is common cause that the accused
was arrested on 10 August 1999 by members of the Namibian Police
namely Warrant Officer Gideon Kashawa, Inspector Shebby Lukopani and
Inspector Mokena at Kalumba village in the Caprivi region. The
circumstances under which he had been arrested are in dispute. He
was taken to Katima Mulilo police station and thereafter transported
to Mpacha military base. He was subsequently flown to Grootfontein
military base where a warning statement was obtained from him on 19
August 1999. On 23 August 1999 he was taken for his first court
appearance. On 15 September 1999 he was taken to a magistrate who
took down his statement (Exhibit EJW).
[23] The state witness
Inspector Mukena in his evidence-in-chief testified that the accused
had at the time of his arrest not been assaulted or threatened nor
provided with a certain version of events presented to him by the
police officers. At some stage during cross-examination he relented
and corroborated the version of the accused under which circumstances
the arrest had been effected. He admitted that the accused on
different occasions that day had been assaulted by members of the
Namibian Police, that the accused had been questioned about his
involvement in the attack on Katima Mulilo on 2
August 1999, that the accused had denied any involvement in the
attack, that on his denials he had further been assaulted, and that
he was forced to admit to a certain version of the events which
emanated from the police. The other two state witnesses namely
Inspector Lukopani and warrant officer Kashawa denied this version
and testified that the accused had never been assaulted on that day.
[24] Mr January who
appeared on behalf of the state submitted that the witness (Mr
Mukena) discredited himself if one has regard of his contradicting
evidence and the fact that subsequent state witness refuted his
concessions.
[25] The witness made
the concessions referred to (supra) during cross-examination.
There was no re-examination. These concessions therefore stand as
evidence presented by the State since the State has not discredited
this witness neither was there an application to have the witness
declared a hostile witness. In the result the State presented two
mutually destructive versions to this Court which was fatal.
It is not necessary to
relate the version of the accused person. It is however necessary to
relate what happened on 15 September 1999 when the accused person was
brought to the magistrate in Grootfontein in order for him to depose
to his statement. Exhibit EJW is document labeled “Confession
in terms of section 217 of the Criminal Procedure Act, 1977 (Act 51
of 1977)”. Certain preliminary questions appear on this
pro-forma document. Question 4(i) is whether the deponent had been
threatened with assault should the deponent decline to make a
statement to the magistrate, to which the accused answered in the
negative.
Question 6(i) is
whether the deponent had been threatened with assault or any other
prejudice should the deponent inform the magistrate of assaults or
threats against the deponent prior to having been brought to the
magistrate, to which the accused answered in the negative.
[26] Question 8(i) was
whether the deponent had any injuries, and if so, of what nature to
which the accused answered as follows:
“No – but I was
assaulted, I was kicked, beaten with fists and slapped.”
[27] The observation by
the magistrate was that the accused could show no injuries.
[28] Question 12 on the
pro-forma reads as follows:
“(i) Have you
previously made a statement to any person in respect of this incident
?
Answer: Yes.
(ii) If so, to whom, when and
under what circumstances ?
Answer: To the C.I.D on
10/8/1999 at Katima Mulilo.
(iii) Why do you wish to
repeat this statement ?
(Ascertain and describe the
circumstances which led to declarant’s appearance)
Answer: I would like to
repeat it because I was forced what to tell. They said they would
shoot me.”
[29] Question 13 reads
as follows:
“(i) Did anyone tell
you what to say in this statement ?
Answer: No. ”
[30] Other questions
followed and the magistrate eventually took down an incriminating
statement from the accused.
[31] It is in my view
necessary to quote question 17 which reads as follows:
“17. Whereas it appears
that declarant:
(a) is in his or her sound
and sober senses;
(b) was not unduly
influenced thereto; and
(c) freely and voluntarily
desires to make a statement, he or she is told that he or she can now
make such a statement.”
[32] If one has regards
to the answers given to questions 8(i) and 12(ii) then it is
difficult to fathom how it could have appeared to the magistrate that
the accused “freely and voluntarily desires to make a
statement”.
The answers to these
questions amount to a categorical denial of voluntariness.
[33] Even if one has
regard to the answer given to question 13 in comparison with the
answer to question 12(iii) there is an obvious tension or
contradiction between these two answers. In my view not even the
answer to question 13 could have convinced the magistrate that the
statement that the accused was about to give would have been given
freely and voluntarily.
[34] It is a clear to
me that having regard to the evidence (presented by the State, the
accused person, and some of the answers given to the magistrate by
the accused) that the State has not proved beyond reasonable doubt
that the accused gave the statement freely and voluntary.
[35] In the result I
rule the statement to be inadmissible.
Rodwell Mwanabwe
Sihela
[36] The accused
objected to the admissibility statement in the sense that it was not
given freely and voluntarily but was given when he had been unduly
influenced to give such a statement. In particular that he had been
assaulted when he was arrested at his village by police officers,
that he was kept in solitary confinement at Grootfontein military
base and assaulted, was never informed of Judges Rules or his
constitutional rights, and that he was told to repeat a confession to
the magistrate previously dictated to him by the police.
[37] It is common cause
that the accused was arrested on 10 August 1999 at Ngukwe village in
the Caprivi region by a group of approximately twenty police
officers. On the same occasion one Chika Adour Mutalife was also
arrested. The arrests were effected before dawn. All the police
officers were armed. They were taken to Katima Mulilo police station
and handed over to Chief Inspector Munaliza. They were not booked
into the occurrence book as was normal practice. The accused was
taken to Mpacha military base and later flown to Grootfontein
military base where he appeared in court on 23 August 1999 for a bail
application. On 14 September 1999 he appeared before a magistrate
who recorded his “confession”. The three senior
police officers who were involved in his arrest on 10 August 1999
were warrant officer Gideon Kashawa, Inspector Shebby Lukopani and
Inspector Richard Mukena.
[38] Warrant officer
Kashawa and Inspector Lukopani during their testimonies denied that
the accused had ever been assaulted on the day of his arrest.
Warrant officer Kashawa testified that he informed the accused of his
right to remain silent and warned him of his other legal rights.
Inspector Lukopani confirmed in his testimony that the accused had
been informed of his right to legal representation at the time of the
arrest at the village. Inspector Mukena in material respects
contradicted (during cross-examination) the evidence of Warrant
officer Kashawa and Inspector Lukopani. He, Inspector Mukena, denied
that the accused had been given any warning prior to his
interrogation. He confirmed that once the accused had stepped out of
the hut in which he had been sleeping he was beaten and kicked whilst
questions were asked about his involvement in the attack. Inspector
Mukena confirmed that the accused had then been taken from the
village into the bush where the assaults and kicking continued
because the police wanted an admission from the accused person that
he had been involved in the attack on 2 August 1999, which admission
the police eventually extracted from him on that day. He conceded
that since he had witnessed himself these kickings, beatings and the
accused being hit with the butt of a fire-arm, that he would have
entered the injuries sustained by the accused in the occurrence book
at the police station.
[39] It is common cause
that when the accused had been brought to Katima Mulilo police
station that these injuries had not been recorded neither the fact
that the accused had been arrested.
[40] Inspector Mukena
further confirmed what a state witness, Dascan Simasiku Nyoka, had
testified in the main trial, in respect of what Nyoka had observed
during this very same incident , namely that the accused, Sihela, was
blindfolded and kicked to the point where the blindfold fell from his
face, and that the accused had been hit with the butts of fire-arms.
[41] Mr January has in
respect of this mini trial also argued that Inspector Mukena’s
evidence should be disregarded since he has discredited himself by
giving two conflicting versions, one during his evidence-in-chief and
a different version during cross-examination. The State has not
during re-examination discredited Inspector Mukena, neither was there
an application to declare him a hostile witness. This Court cannot
ignore the evidence of Inspector Mukena that the accused person had
been assaulted at the time of his arrest. It must be accepted that
the state witness (Inspector Mukena) has corroborated the evidence of
Rodwell Sihela as well as the evidence of another state witness,
Nyoka, to the effect that the accused had been assaulted by the
members of the police force. Even if the State were to call another
ten witnesses to testify that the accused had not been assaulted it
would not have assisted the State since the State had by default
(i.e. by not discrediting or by not applying the witness to be
declared hostile) accepted the evidence of Inspector Mukena that the
accused had been assaulted as alleged. Two mutually destructive
versions had been presented by the State which undermined the proof
that the statement given by the accused had been given freely and
voluntarily.
[42] In addition when
the accused appeared before the magistrate on 14
September 1999, one of the preliminary questions in the pro forma
(referred to supra) was whether he had previously made a
statement in respect of this incident, and if so, to whom and under
what circumstances. The accused answered that he gave the statement
to a police officer at the police station on 10
August 1999.
The following question
was why he wanted to repeat the question, to which the accused
answered as follows:
“The previous statement
was not the real one. I was forced while they were armed with a
fire-arm.”
[43] This accused also
informed the magistrate on a previous question, that he had been hit
with a fire-arm on his head and on his back. The magistrate observed
a healed scar on the left side of his forehead.
[44] In addition when
asked what is the date of the commission of the alleged offence in
connection with which he wished to make a statement the accused
person stated that he did not commit any offence.
[45] The magistrate did
not explore the averment that he had been forced but continued to
take down the statement since the magistrate was of the view that the
declarant freely and voluntarily desired to make the statement
without being unduly influenced thereto.
[46] I need at this
stage not even consider the testimony of the accused person to
conclude that the State has failed to discharge its onus to prove
that the statement had been given freely and voluntarily.
This statement is
accordingly declared to be inadmissible.
Chika Adour
Mutalife
[47] The objection to
the admission of the statement (admission) was that it was not made
freely and voluntarily in the sense that the accused had been
subjected to assaults, threats and promises. He was constantly
interrogated and told what to tell the magistrate. The accused was
also never warned of his constitutional rights nor warned in terms of
the Judges Rules. This accused had been arrested together with
Rodwell Sihela on 10 August 1999 at Ngukwe village. He was taken to
Katima Mulilo police station and thereafter taken to Mpacha military
base. He was flown to Grootfontein military base where he was kept.
On 19 August 1999 his warning statement was taken and on
14 September 1999 he was taken to a magistrate who recorded his
statement.
[48] The State called
amongst others Warrant Officer Kashawa, Inspector Mukena and
Inspector Lukopani. The police officers denied assaulting the
accused person. I have indicated previously that Inspector Mukena
had conceded that Rodwell Sihela who was together with the accused,
Mutalife, had been assaulted, interrogated in the bush, and a
confession extracted from him.
[49] Chika Mutalife
testified about the same method followed by the police when they
dealt with him namely, the assaults at the village. He was further
assaulted in the bush and a confession was extracted from him. The
accused person like Rodwell Sihela was not booked in at the charge
office at Katima Mulilo police station but taken directly to Chief
Inspector Monaliza who at that stage was in charge of operations.
Inspector Mukena conceded during cross-examination that the normal
procedure of booking-in suspects was not followed most probably
because the injuries sustained by the suspects would have been
recorded in the occurrence book in the charge office.
[50] It is clear from
the questions which preceded the taking down of the statement by the
magistrate that the accused person had made a prior statement to the
police. It is also clear when asked why he wanted to repeat the
statement the accused replied as follows:
“I want to make a
correction. Some of the things I told the police were not correct.
I was forced, a fire-arm was pointed at me.”
[51] The magistrate did
not clarify or investigate this allegation but continued to take down
the statement of the accused since it appeared to him that the
accused freely and voluntarily desired to make a statement.
[52] Bosielo AJP in
S v Maasdorp 2008 (2) SACR 296 NCD at 305 h – 306 a said
the following regarding the duty of a magistrate when taking down a
statement:
“Although, strictly
speaking, a magistrate who takes a confession is not expected to act
as an inquisitor or investigator, one does not expect him to act like
a passive umpire who is simply there to ensure that formal rules are
observed. Given the historical evolution of confessions in this
country and the countless reported cases of abuse of their power and
authority by the police, one expects that where there is some
indication of improper conduct which could have had an undue
influence on the accused to make a confession, that the magistrate
who takes such a confession should investigate further the
circumstances surrounding the alleged confession. Self-evidently,
such conduct is congruent with the basic tenets of fairness to an
accused person, which underpins the right of every accused person to
be presumed innocent, the right to remain silent and the right not to
be compelled to make any confession or admission that can be used in
evidence against such person.”
[53] That such a duty
rests upon any magistrate who is required to take down an admission
or a confession has been recognized as far back as 1942. The Appeal
Court in South-Africa expressed itself as follows in Rex v Gumede
and Another 1942 AD 398 at 433:
“I think it is right to
add a comment on the working of the rule laid down in the second
proviso to sec. 273 (1) as illustrated by what took place in this
case. That proviso, as already mentioned, renders a confession “made
to a peace officer other than a magistrate or justice”
inadmissible in evidence unless “confirmed and reduced to
writing in the presence of a magistrate or justice”. In this
case admissions were obtained from both accused by the police, and
the accused were then produced before a magistrate to make
statements. Nothing was said to the magistrate as to what had taken
place to the accused and the police prior to the appearance of the
accused before him. The magistrate took down what they said as new
statements previously made. And this seems to be a practice commonly
followed, namely, that an accused or suspected person is interrogated
by the police, and that, when, as a result of such interrogations, he
has been brought to a confessing state of mind, he is taken to a
magistrate and then makes his statement before him, as if he were
making it for the first time. The result is that the proceedings
before the magistrate, as faithfully recorded by him, may convey a
very misleading impression of spontaneity on the part of the person
making the statement, when, as a matter of fact, the statement is not
really made spontaneously, but as a result of a series of
interrogations, in the course of which illegitimate methods may have
been applied for the purpose of inducing the person concerned to make
his statement, including possibly admissions of guilt. Thus this
proviso though devised, in part at least, for the protection of
accused or suspected persons, may actually work very much against
them, and tend to facilitate the obtaining of statements by improper
means, which may not come to light owing to the dropping of a veil
between the previous interrogations by the police and the subsequent
appearance of the interrogated person before the magistrate.
If this second proviso is to
be retained in law in its present form, some rule of procedure should
be laid down as to questions to be asked by the magistrate, so that
the person making the statement before a magistrate may be encouraged
to disclose what has led up to his appearance before the magistrate
for the purpose of making his statement.”
[54] This comment was
quoted with approval in S v Jika and Others 1991 (2) SACR 489
where the Court expressed itself as follows at 500 e – g:
“As subsequent
authorities have correctly laid down, it is in such circumstances
necessary that the questioning by the magistrate be such as, firstly
to pierce the veil adverted to in Gumede’s case and, secondly,
to ensure that the result of such a piercing is that one is satisfied
beyond reasonable doubt that whatever possible untoward circumstances
may have prevailed at the time the accused made the statement to the
police were no longer operative at the time when the accused appeared
before the magistrate. As indicated in Gumede’s case, the
reason herefor is that there is a danger that by reason of untoward
conduct on the part of the police the accused might have been brought
to a confessing state of mind which might persist at the time of his
appearance before the magistrate and which might give rise to an
apparent but deceptive voluntariness on his part to make a statement
to the magistrate.”
[55] The accused
informed the magistrate that he was forced to give a statement to the
police. This should have alerted the magistrate to investigate the
circumstances under which the accused had been brought to him in
order to establish whether the accused had been brought to a
confessing state of mind which persisted at the time of the
appearance of the accused person before him.
[56] There is no proof
that the accused’s volition was not affected by the force
mentioned by him in the sense that he freely and voluntarily gave the
statement to the magistrate.
[57] I am not satisfied
that the State has discharged its onus to prove beyond reasonable
doubt that exhibit EJU has been made freely and voluntarily and rule
that the statement recorded by the magistrate to be inadmissible.
Joseph Omo
Mufuhi
[58] The objection
against the admission of an admission made by the accused to the
magistrate was that it had not been made freely and voluntarily since
the accused had been subjected to insults, accusations, assaults and
torture. He was furthermore upon his arrest on 1 September 1999 not
informed of his constitutional rights neither was he warned according
to Judges Rules. He was taken to the Katima Mulilo police station
where he was interrogated and assaulted. He was transferred to
Grootfontein on 4 September 1999. He was told what to inform the
magistrate and on 14 September 1999 he was taken to a magistrate who
recorded his statement.
[59] Mr January
submitted that the testimony of those members of the Namibian Police
who effected the arrest of the accused person (i.e. officers Mbinge,
Karstens, Chizabulyo, Aupa, Simasiku and other Special Field Force
members) corroborated with each other to the effect that after the
accused had been arrested he was taken to Katima Mulilo police
station and that he had not been assaulted.
[60] I do not deem it
necessary to give a summary of the evidence presented by each state
witness neither do I deem it necessary to repeat in detail the
testimony of the accused how, when and by whom he had been assaulted,
threatened and told what to tell the magistrate.
[61] It is clear from
the preliminary part of Exhibit EJS (i.e. the “confession”
document), that the accused had when he appeared before the
magistrate provided certain information to the magistrate.
Question 8(i) was
whether he had any injuries and if so of what nature. The accused
answered in the affirmative and added that he was slapped and hit
with a fist for almost two days.
Question 8(ii) was how
he obtained these injuries to which he replied as follows:
“I have a problem with
my hearing as a result of the assault.”
[62] The observation by
the magistrate was as follows:
“Shows a small black
mark on the left side of the ribs – said he was kicked.”
[63] Question 12(i) was
whether he had previously made a statement to which the accused
answered in the affirmative.
Question 12(ii) was to
whom, when and under what circumstances the statement was given, the
accused replied that it was given to a policeman on 3 September
1999 at the police station.
Question 12(iii) was
why he wished to repeat his statement to which the deponent replied
as follows:
“They did not take my
statement as I told them. They also did not re-read the statement to
me.”
[64] Question 12(i) was
whether anyone told him what to say in the statement to which the
accused answered in the negative.
[65] One should not
lose sight of the fact that the State bears the onus to prove the
admissibility requirements of the statement beyond reasonable doubt.
The magistrate called to testify on behalf of the State is a witness
like any other police officer called to testify.
I have indicated that a
magistrate who takes down an admission or a confession does not act
like a recording machine but has a specific duty before a
statement is taken down and that is to be satisfied (as far as the
circumstances may allow it) that a deponent gives his or her
statement freely and voluntarily.
[66] The magistrate in
this instance failed to do this. The answers given to questions e.g.
that no promises were made to the accused person, that what he was
about to say in the statement would be the truth, that he has not
been threatened with assault should he decline to make a statement to
a magistrate or that he has not been threatened with assault or any
other prejudice should he inform the magistrate of assaults or
threats against him prior to him being brought to the magistrate,
collectively do not negate the fact that the magistrate had been
alerted by the accused person that he had been assaulted to the
extent that he was half deaf at the stage he appeared in front of the
magistrate.
[67] In this instance
the magistrate was obliged to do more than merely recording what was
said by the accused person but was obliged to pose further questions
to the accused person in order to pierce the veil adverted to in
Gumede’s case (supra), in order to exclude any
possibility that the accused person was still in a confessing state
of mind when the accused appeared before him.
The failure of the
magistrate to do this results in a failure to comply with the
admissibility requirement (voluntariness) contained in section 219
(A)(1) of Act 51 of 1977.
[68] It would in
addition be inimical to the basic notions of fairness, justice and a
fair trial to receive Exhibit EJS as admissible evidence in this
trial.
[69] In the result my
ruling is that Exhibit EJS for the reasons mentioned is inadmissible.
Kingsley Mwiya
Musheba
[70] The accused
objected to the statement (admission) on the basis that it was not
made freely and voluntarily since the accused was subjected to
assaults, undue influence, and torture. The accused was also not
informed of his constitutional rights neither warned in terms of the
Judges Rules at the time of his arrest on 2 August 1999. The accused
had allegedly been assaulted from the time of his arrest until the
next day when he was removed to Grootfontein military base and kept
in solitary confinement for 20 days during which time he had been
periodically interrogated, threatened and assaulted by members of the
Namibian Defence Force. He was encouraged by Chizabulyo, a member of
the Namibian Police to repeat a version of the events to the
magistrate which had been provided to him by the police. He did it
in order to save his life.
[71] It is common cause
that the accused had been arrested on 2 August 1999 shortly after the
attack on Katima Mulilo on 2 August 1999 and detained by members of
the Namibian Defence Force, first at Mpacha military base and later
at Grootfontein military base. His warning statement was obtained on
19 August 1999, and on 24 August 1999 he appeared in court
in connection with a bail application. It was testified by
Popyeinawa, a police officer, that he spoke to him in Grootfontein
prison and the accused indicated his willingness to make a statement
to the magistrate. This was denied by the accused. On
17 September 1999 he was taken to a magistrate who recorded his
statement.
[72] The State
presented evidence with the aim of proving that the accused person
had voluntarily given his statement to the magistrate. The accused
testified in an attempt to prove contrary.
[73] When the accused
appeared before the magistrate preliminary question were asked by the
magistrate and it is necessary to refer to those questions and
answers.
[74] Question 8(i) was
to the effect whether the accused had any injuries to which the
accused replied in the affirmative.
Question 8(ii) wanted
to know how he had sustained those injuries.
[75] The accused
replied to this question as follows:
“Answer: With a
sjambok – several times and also kicked.
(Observation by magistrate –
described injuries – if any):
Showed a bandage around the
ribs – wound at left side of back and also other scars on the
back and right arm and on the head and also on the nose.”
[76] Question 12(i) was
whether he had made a previous statement to which the accused replied
that it was given to the police at Grootfontein in the army base.
On the question 12(iii)
why he wished to repeat that statement he replied as follows:
“I want to repeat it.
At that stage I was confused as a result of the assault.”
[77] Question 13(i) was
whether anyone told him what to say in that statement he answered in
the negative.
[78] Mr January on
behalf of the State critised the evidence of the accused person as
contradictory regarding where he had been arrested and that the claim
of the accused that what he informed the magistrate in his statement
came from the police is fanciful and improbable in view of the
detailed content thereof and his evidence that what is contained in
his statement came from the police is so fanciful and improbable that
this court should reject it as false.
[79] This argument
prima facie appears to me (without making a ruling on those
submissions) not without merit but since that State has accepted that
it bears the burden of proving the admissibility requirement of
voluntariness this Court must have regard in the first instance to
the evidence presented by the State in order to determine whether the
State has discharged its onus.
[80] I have referred
(supra) to the duty of a magistrate when an accused person
appears before a magistrate to have his or her statement recorded.
When the accused person appeared before the magistrate on 17
September 1999 he not only informed the magistrate that he had been
assaulted but the magistrate himself observed the injuries sustained
by the accused person.
[81] I have indicated
(supra) that where there is an allegation of assault by the
police the magistrate must put further relevant questions to the
accused person in order to establish eventually whether or not the
statement the accused is about to give would be given freely and
voluntarily and not when the accused has been brought to a confessing
state of mind.
[82] Maritz J (as he
then was) in S v William Swartz and Others (unreported) Case CC
108/99 delivered on 29 October 1999 referred to the duty of the
magistrate and said (at p. 22 of the judgment) the following:
“Of course, had the
accused said anything which should have caused the magistrate to
suspect that the accused’s appearance before her was not freely
and voluntarily, or that he had been unduly influenced, she would
have had the duty to further enquire into the matter, and such a duty
would have extended beyond the scope of the pre-printed form."
[83] In S v
Tjihorero and another 1993 NR 398 at 404 G-H Strydom JP (as he
then was) said:
“Lastly, I wish to
refer to the prescribed roneoed form which was used by Chief
Inspector Terblanche when he took the statement of accused 1.
Officers and magistrates using this form are, when the answer given
to them by a particular deponent are not clear or need further
elucidation, entitled and must ask further questions in order to
clear up such uncertainties, as
long as the questions and answers thereto are also written down”.
(Underlining mine))
[84] In this instance
the magistrate did not only hear allegations of assault but he
himself observed the effects of those alleged assaults. It is in my
view highly unlikely that the magistrate could have been under the
impression that the accused person freely and voluntarily desired to
make a statement.
[85] If one has regard
to all the questions and answers given by the accused at the
preliminary stage, specifically the replies to questions 8(i), 8(ii),
12(ii) and 12(iii) (supra) one would be very hard pressed to
conclude that the tenor of the answers given, beyond reasonable
doubt, tend to support the requirement of voluntariness. On the
contrary in this particular instance the answers (specifically to
questions 8(i), 8(ii), 12(ii) and 12(iii) point towards coercion.
[86] The State has in
my view not proven the admissibility requirements as required by
section 219 A (1) of Act 51 of 1977, accordingly the admission
(Exhibit EJV) is ruled to be inadmissible evidence.
O’Brien
Sinkolela Mwananyambe
[87] The objection to
the admission of the statement (confession) was that he had been
assaulted by two police officers, namely Evans Simasiku and one
Sergeant Kombungu on 2 February 2000. He was taken to Katima Mulilo
police station where the assaults and threats continued. A warning
statement was taken on 3 February 2000. He was subsequently on 26
April 2000 transferred to Grootfotnein prison where he was at some
stage informed that he should make a confession in line with a
statement prepared by the police and should he fail to comply with
these instructions further assaults would follow. On 3 May
2000 he was taken to a magistrate where his statement was recorded.
[88] Officers Simasiku
and Kombungu denied that the accused had been assaulted at the time
of his arrest at the village of Masikotwani and denied that he had
subsequently been threatened or assaulted at the Katima Mulilo police
station. It was put to Simasiku during cross-examination that on 28
April 2000 he (i.e. the accused person) was visited in Grootfontein
Prison by police officers i.e. himself (Simasiku), Mbinge, Kombungu
and a certain Bernard Sachibambo where the accused was informed that
he should make a confession, the contents of which should be in line
with his warning statement. This was denied by Simasiku, who
testified that when the accused person was transferred to
Grootfontein Prison, Kombungu was not part of the escorting party.
He further denied that the accused had been threatened that should he
not do as he was told, further assaults would follow. Mbinge also
denied that he was present at the Grootfontein Prison when the
accused had allegedly been informed to give a confession.
[89] The magistrate who
recorded the statement (confession) testified that she asked him
preliminary questions before taking down his statement.
[90] The accused was
informed of his right to legal representation but never informed of
his entitlement to legal aid.
[91] This Court has in
the past held (See S v Malumo and Others (2) 2007 (1) NR 198 at
211 that Article 12 of the Namibian Constitution means that the
entire process of bringing an accused person to trial and the trial
itself needs to be tested against the standard of a fair trial.
[92] Article 12 (1)(e)
of the Namibian Constitution provides that all persons shall be
afforded adequate time and facilities for preparation and
presentation of their defence, before the commencement of and during
their trial, and shall be entitled to be defended by a legal
practitioner of their choice.
[93] In S v Kasanga
2006 (10 NR 348 Heathcote AJ remarked at 360 D – E
as follows:
“In my view, the
starting point in determining the fairness of a trial, as envisaged
in art. 12, should always be whether or not the accused is informed.
Without an accused being properly informed, one cannot even
begin to speculate whether or
not rights have been exercised or indeed waived.”
I
endorse this passage.
[94] Even though the
entitlement to legal aid is not a fundamental right in terms of the
provisions of the Namibian Constitution, how else would an
unrepresented lay person be in a position to exercise his right to
legal representation if this entitlement is (inadvertently ?)
withheld for him or her ?
[95] In James Gadu v
The State 2004 (1) NCLP 48 at 56 Manyarara AJ suggested a simple
format to inform an accused person of his right to legal
representation:
“(a) that he has a
right to be defended by a lawyer …;
(b) that he has the right
either to hire and pay a lawyer ‘of his choice’ or,
alternatively apply to the legal aid officer for a lawyer to be
provided by the State;
(c) that if he chooses to
apply for a legal aid lawyer, the clerk of court will assist him in
completing the necessary forms; and
(d) that the legal aid office
will consider his financial circumstances and, based on its finding,
it will decide and inform him whether he will be required to make any
contribution towards the cost of the legal aid lawyer to be provided
to represent him.”
[96] In this instance,
as in the other matters, the failure by the magistrate to inform the
accused of his entitlement to legal aid is fatal.
[97] In the result this
Court rules exhibit EKL inadmissible.
Richwell Makungu
Matengu
[98] This accused
person did not testify. The statement (Exhibit EJX) was handed up by
the State because the magistrate who took down the statement was in
Court. This statement was not in issue. It is not an admission
neither is it a confession. It is a total denial of the commission
of any offence.
Brighton Simisho
Lieleso
[99] The accused
deposed to a statement (Exhibit EHR) before a magistrate on 6
September 1999 in Grootfontein where to the question whether he
needed legal representation the accused replied:
“I need a lawyer, but I
have no money. You can just continue without a lawyer.”
[100] In reply to the
question whether he had any injuries he replied:
“No, but I was beaten
on the buttocks with a sort of stick – black one.”
[101] The observation
by the magistrate was as follows:
“Observe no injuries,
but he states that he was beaten three (3) times on buttocks and once
on face.”
[102] The accused
person informed the magistrate that he elected to be legally
represented but was not in a financial position to do so. This was
an ideal opportunity for the magistrate to have informed the accused
of his entitlement to legal aid. This the magistrate failed to do.
[103] The accused in
addition informed the magistrate that he had been assaulted by police
officers. The magistrate failed to put any question to the accused
person in this regard. One would have expected the magistrate to ask
the accused at least when these assaults took place and whether those
assaults had anything to do with the appearance of the accused person
before him.
[104] It is further
clear from (Exhibit EJY) that the accused on
14 September 1999, eight days later, appeared before a different
magistrate with the aim of making a statement when the accused person
this time more categorically informed the magistrate that he needed
to consult with a legal representative before he would say anything.
[105] I do not know why
it was necessary to have the accused person before a magistrate for a
second time when a statement had already been obtained at the first
occasion.
[106] The magistrate at
the first occasion could not have been satisfied that the accused
person, in the absence of any clarification by him, was about to give
his statement freely and voluntarily.
[107] Exhibit EHR is
accordingly ruled to be inadmissible. Exhibit EJY was not in
dispute. The magistrate stopped recording when the accused indicated
that he wanted legal representation.
Albert Sekeni
Mangilazi
[108] The objection to
the admission of the statement was that it was not given freely and
voluntarily and that the accused had been unduly influenced to give
the statement. It was alleged that the accused had been brutally
assaulted by three police officers (Armas Manya, Litoli Petrus
Shanyegange and Haikali Immanuel) when he was arrested. At the
police station officer Popyeinawa and another officer known as Robert
Chizabulyo interrogated him and further assaulted him. Robert
Chizabulyo and officer Evans Simasiku forced him to say things they
wanted to hear. Police officer Bonaventure Liswaniso threatened the
accused and made it clear that he should follow what the other
officers were demanding.
[109] The State called
a number of witnesses. Armas Manya testified that he was one of the
arresting officers on 18 July 2002. The accused and Frederick
Tembilwa were arrested early one morning whilst on routine patrol
duties. These two male persons were searched and two AK 47 magazines
were found in their possession. He denied that these two male
persons had been assaulted by himself or any one of his colleagues
(Sergeant Iitula, Constable Mashina and Constable Haikali) at the
time of his arrest.
[110] The State did not
call the other officers present at the time the accused was arrested.
[111] It is not clear
from the evidence presented by the State under what circumstances the
accused felt compelled to make a statement, exhibit EJK, to the
magistrate.
Police officer Kombungu
testified that after he had recorded the warning statement of the
accused on 21 July 2002 the accused himself offered to go to the
magistrate for a confession, whilst officer Evans Simasiku testified
that the accused person indicated his willingness to give a
confession to the magistrate after he himself (i.e. Simasiku) had
asked the accused whether he would be willing to give a
confession to the magistrate.
[112] The magistrate
during the preliminary questions explained to the accused his right
to legal representation but failed to alert the accused to his
entitlement to legal aid.
[113] The authorities
referred to (supra) relating to the duty of a magistrate to
adequately inform an undefended accused person of his right to legal
representation are applicable in this instance.
[114] The magistrate’s
failure to inform the accused person of his entitlement to legal aid
is an irregularity which vitiated the subsequent proceedings.
[115] Exhibit EJK is
accordingly ruled inadmissible.
Michael Mubiana
Mundia
[116] The objection to
this Court receiving the statement (admission) was that the
admissibility requirements referred to in section 217 of Act 51 of
1977 had not been complied with inter alia because the
statement had been obtained by force.
[117] The accused was
arrested on 27 January 2000 by members of the Namibian Police Force.
On 31 January 2000 his warning statement was obtained. On 6 April
2000 he was transferred to Grootfontein and on 17 July
2000 he gave a statement to the magistrate.
[118] Mr McNally who
appeared on behalf of the accused in his heads of argument raised two
issues. Firstly that the right to legal representation had
inadequately been explained to the accused person, and secondly that
the magistrate failed to make further enquiries when the accused
person replied that he was forced.
[119] It was submitted
by Mr January who appeared on behalf of the State that the issue of
his right to legal representation was never raised as one of the
objections against admissibility and the accused during his evidence
did not testify that he did not know or did not understand his right
to legal representation. It was also submitted that the question of
legal representation was never put in issue during cross-examination.
It must however be added that the magistrate was during
cross-examination questioned about her failure to inform the accused
that he has a right to apply for legal aid.
[120] In reply of the
first issue the following appears on Exhibit EKK:
“The declarant is
informed that he or she has a right to legal representation of his or
her choice. If he or she wants to make use of legal representation
he or she will be afforded such an opportunity before making a
statement.”
Q. Do you want legal
representation ?
A. No. ”
[121] The magistrate
during cross-examination gave an ambivalent reply to the question
whether she had informed the accused person of his right to legal
aid. She first stated that the issue of legal aid does not appear on
the pro forma but later stated that she must have informed him about
legal aid and immediately conceded that there is no proof that she
informed him of such a right.
[122] In S v Tobias
Kau and Others 1995 NR 1 at p. 11 on the topic of
cross-examination the Supreme Court held that all that the magistrate
had told the accused persons about cross-examination should have been
written down.
[123] On p. 12 the
court expressed itself as follows:
“Without a precise
record giving particulars of the nature of the explanations made to
the appellants it is difficult to come to the conclusion that the
magistrate fully explained to the appellants their rights.”
[124] It is thus
difficult for this Court to accept that the accused’s right to
legal aid had been explained in the absence of such explanation in
writing.
(See also S v
Wellington 1990 NR 20 on 25).
[125] It is trite law
that an accused has a right to legal representation and to be
informed of such a right.
[126] In S v
Hlongwane 1982 (4) SA 321 NPD at 323 Didcott J said the
following:
“A judicial officer
trying an accused person who has no legal representation must explain
to him his procedural rights, and assist him to put his case before
the court whenever his need for help becomes apparent. Such duty has
been proclaimed time and again. Informing the accused person of his
right to call witnesses is one of its most important aspects. To let
him know of that right, yet not how to exercise it when he has no
idea and starts running into trouble, is not of much use. Mere lip
service to the duty is then paid.”
[127] An accused person
must be informed that he is entitled to apply to the Legal Aid Board
for assistance.
(See S v Radebe 1988
(1) SA 191 TPD at 196; S v Gadu 2004 (1) NCLP 48).
[128] In S v Nyanga
and Others 1990 (2) SACR 547 (CK) Heath J stated as follows:
“The explanation to the
accused of his rights is never a mere formality. The explanation
should always be supplemented to cover the particular circumstances
and to do justice to the particular accused. The presiding officer
is not merely a recording machine and he must satisfy himself that
the accused understands and appreciates the explanation and his
rights.”
(See also S v Visser
2001 (1) SACR 401 CPD at 405 d – 3).
[129] In Radebe
(supra) Godstone J referred to Powel v Alabama 287 US 45 (1932
at 68-9 where Justice Sutherland said the following:
“Even the intelligent
and educated layman has small and sometimes no skill in the science
of law. If charged with a crime, he is incapable generally of
determining for himself whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper charge and convicted
upon incompetent evidence, or evidence irrelevant to the issue, or
otherwise inadmissible. He lacks both the skill and knowledge
adequately to prepare his defence, even though he have a perfect one.
He requires the guiding hand of counsel at every step in the
proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know how to
establish his innocence.”
and
remarked at 195 G: “How
much more is this the case with the unlettered and unsophisticated
person who so often appears in our courts ? ”
(See also S v Sibiya
2004 (2) SACR 82 WLD at 89 (f) – (g) ).
[130] In S v Kasanga
2006 (1) NR 348 the court dealt with the question whether or not
the appellant had been properly informed of his right to legal
representation. At 365 I – 366 A the following appears:
“… what was
stated to the appellant in the district court was the following:
‘Accused informed that they have a constitutional right to be
defended by a lawyer of his own choice and means.’
I am not so sure what it
means if someone is informed that he has a constitutional right to be
defended by a lawyer ‘of his own choice and means’. What
I do know is that it is highly unlikely that the appellant would have
known what was conveyed to him. Does this comply with the provisions
of art. 12 of the Namibian Constitution ? In my view, it does not.”
and at 368 A – C
“The case was a serious
one. It concerned a charge of murder. Inevitably, the magistrate
must have known that if the accused was found guilty, he would face a
sentence of long-term imprisonment. The explanation to him about his
rights to obtain legal representation was totally insufficient. It
was also misleading. No indication whatsoever was recorded in the
district court that the appellant was entitled to apply for legal
representation with the Legal Aid Board. He was not informed how to
go about exercising his rights. In my view, the irregularity
vitiated the proceedings.”
[131] There is in my
view no merit in the submission that an accused person must first
raise the issue of lack of legal representation or that his or her
right to legal representation has not properly been explained to such
accused person before this Court may decide the issue.
[132] An accused person
is entitled to a fair trial including fair pre-trial proceedings.
[133] It is the duty
of judicial officers to adequately inform an accused person of his or
her constitutional right to legal representation.
(See S v Kau and
Others 1995 NR 1 SC at 7 C, S v Kapika and Others (1) 1997 NR 285 at
288. See S v Melani and Others 1996 (1) SACR 335 at 348 I –
349 a).
There are exceptions
e.g. where a lawyer appears before a judicial officer or where other
“educated and knowledgeable” persons appears
before a judicial officer. (See S v Kau (supra) at 7D)
[134] Froneman J in
Melanie and Others (supra) explained that the “purpose
of the right to counsel and its corollary to be informed of that
right … is … to protect the right to remain silent, the
right not to incriminate oneself and the right to be presumed
innocent until proven guilty” and that these rights exists
from the inception of the criminal process.
[135] I endorse what
Dumbutshena AJA (as he then was) said in Kau (supra) at 9 B
– C:
“However the response
from those who want to see equality and fairness in criminal trials
should not be that legal aid for all accused in impossible. They
should strive to work for entitlement to legal representation for all
perhaps not now but in future. More often than not indigent accused
are rushed to courts because the police have obtained confessions
before going to court. It may be there that the unfair trial
started. When these people are in custody of the police more often
than not determines whether an unrepresented accused pleads guilty or
not guilty."
[136] This Court has
held in S v Tobias Nahenda (unreported case no. CC
56/2007 delivered on 6 October 2008) that the right to be
informed of legal representation includes the entitlement to legal
aid.
On p. 7 par. 12
Silungwe AJ stated as follows:
“However, an accused
person (a person charged with an offence) is entitled to apply for
legal aid. Hence, the provisions of section 10(2) do not encompass a
person who is merely suspected of having committed an offence. This
means that an arrested person ought to be informed, not only of his
right to legal representation of his choice, but also of his
entitlement to approach the Director of Legal Aid for statutory legal
aid.”
and at paragraph 13
“In so far as Const.
Kapembe is concerned, it is common cause that when she explained the
rights of the accused (who were already under arrest) just before
they could make formal statements to her (which she took down in
writing), she also explained to them their right to legal
representation but, in so doing, omitted to inform them of their
entitlement to apply to the Director of Legal Aid for statutory
(State-funded) legal aid. This omission, which constituted a failure
to properly explain the accused’s right to legal representation
was, in my view, fatal.”
[137] It must be stated
that in casu, it appears from the warning statement (Exhibit
ELR) that his “right to consult a legal practitioner of
his/her own choice and at his/her own expense” was
explained to the accused person. The warning statement is silent
regarding his entitlement to legal aid.
[138] There is merit in
the submission by Mr McNally that where an caused person who appears
in court has the right to be informed of legal representation
and that if he cannot afford a legal practitioner of his choice he
may apply for legal aid is juxtaposed to the position of an accused
person who appears before a magistrate (in office) to have a
confession or admission taken down is merely informed of the right to
legal representation (without informing such person of the
entitlement to legal aid) such accused person before the magistrate
(in office) is at a disadvantage vis-a vis the person who appears in
court.
[139] The second issue
raised (supra) was the result of the reply by the accused when
the magistrate took down his statement that he was forced to give a
statement on 27 January 2000 to the police officers.
[140] It appears from
an answer to the question whether he has injuries and the nature
thereof the accused replied as follows:
“I don’t have
injuries now. I was injured during January 2000.”
His reply to the
question how he sustained those injuries was as follows:
“I was syamboked.”
[141] Sjamboked was
spelt wrongly.
[142] The magistrate
did not investigate those allegations but proceeded to take down a
statement from the accused person.
I have already (supra)
discussed case law and the rationale why an magistrate must in
appropriate instances investigate why a person is willing to repeat a
prior statement given to the police in order to establish whether the
statement to the magistrate is made freely and voluntarily.
[143] Where the
magistrate did not question the accused about those allegations how
could such a magistrate be satisfied that the statement that the
accused person was about to give would be given freely and
voluntarily ?
[144] Similarly there
can be no basis upon which a magistrate can say that he or she was of
the view that the assaults mentioned by the accused person has not
influenced the accused to make a confession or admission if there is
no evidence that such a magistrate had investigated those
allegations.
[145] The State must
prove beyond reasonable doubt that a statement to the magistrate was
made freely and voluntarily. In S v Mofokeng and Another 1968 (4)
SA 852 at 854 H – 855 A the following was said in relation
to this onus:
“I may not receive in
evidence a confession, even if I believe its contents to be true,
unless I am satisfied beyond reasonable doubt that it was freely and
voluntarily made and that the accused person who made it was not
unduly influenced within the meaning of S. 244 (1) of the Criminal
Procedure Act to make it. The fact that the accused are unreliable
witnesses does not of itself mean that the state’s burden of
proof has
necessarily been discharged. In
saying that I am not unmindful of the remarks of Williamson J A in S
v Mkwanazi 1966 (1) SA 736 A at 747.
Those remarks embody an injunction against the rejection of a
confession on the basis of mere conjecture unsupported by any
evidence. But considered in their context they not mean that a trial
Court which has found the accused to be an unsatisfactory witness, is
thereby relieved of the duty to weigh up the evidence as a whole in
order to decide whether the prerequisites to admissibility have been
proved beyond reasonable doubt.”
[146] The accused
person is relatively a unsophisticated person. He attended school up
to grade 7 which he failed and worked at a school hostel as a
“cooker”. I take if that this has something to do
with the preparation of meals.
[147] In respect of the
first issue raised (supra) my view is that the explanation by the
magistrate of the right of the accused to legal representation was
inadequate and the accused person could not have made an informed
decision that he needed no legal representation.
[148] The State’s
failure to adequately or fully explain the rights of the accused to
legal representation has as a consequence the inadmissibility of the
statement for the reasons mentioned (supra).
[149] Regarding the
second issue, the failure of the magistrate to question the accused
regarding allegations of coercion has a similar result in the sense
that the State failed to prove that the statement was made freely and
voluntarily.
[150] In the result
exhibit EKK is ruled inadmissible.
Tobias Mushwabe
Kananga
[151] The objection
against the admissibility of the admission was on the ground that the
statement had not been obtained freely and voluntarily in the sense
that he had been assaulted by members of the police, that he had not
been warned of his constitutional rights neither had he been warned
according to Judges Rules. He was threatened by the police to tell
the magistrate a certain version provided to him by the police.
[152] The accused was
arrested on 25 March 2000 by members of the Namibian Police. His
warning statement was obtained by detective warrant officer Mbinge on
28 March 2000 at Katima Mulilo. He was transported to Grootfontein
on 26 April 2000. He gave a statement to the magistrate at
Grootfontein on 4 May 2000. The state witnesses denied
that the accused had been assaulted, forced or threatened to make a
statement.
[153] In terms of
Exhibit EKM (the admission) the accused informed the magistrate that
he had given a statement to Warrant Officer Simasiku on 25
March 2000, that he gave it in a friendly way and that he was not
forced.
His reply why he wished
to repeat the statement was that he would like to repeat it in order
to apologise “before the magistrate”.
[154] In terms of his
warning statement he was informed that he had a right to consult a
legal practitioner of his choice and at his own expense, prior to
deciding to remain silent or answer questions or give an explanation.
He indicated that he did not wish to consult a legal representative.
[155] In terms of the
admission statement the accused was informed that he has a right to
legal representation of his choice and that if he wants to make use
of a legal representative he would be afforded such an opportunity
before making a statement.
The accused replied as
follows:
“I would like to
confess now. I will later engage an attorney for purpose of trial.”
[156] In neither the
warning statement nor the admission statement was the accused
informed of his entitlement to legal aid.
[157] In his
evidence-in-chief the accused stated that he informed the magistrate
that he wanted to confess since he was in fear and that he was afraid
of the interpreter and the police officers who had been waiting
outside the office of the magistrate who had allegedly informed him
that he would be killed should he make a mistake.
[158] I have already
(supra) referred to relevant case law regarding the
fundamental right of an accused person to legal representation which
includes his or her entitlement to legal aid and the consequences of
not informing an accused person, in particular a layperson, of such
entitlement even during pre-trial procedures.
[159] In this regard
the court in S v Owies 2009 (2) SACR 107 CPD on regard the
issue of legal representation, said the following at 111 i –
112 a:
“It must be borne in
mind that it is not uncommon to come across cases where accused
persons have been advised of their constitutional rights to legal
representation, but decide to decline and represent themselves even
where they face serious charges. In most cases such decisions are
based on misunderstanding the free legal representation system.
Judicial officers are encouraged to go an ‘extra mile’
where accused are facing serious charges, to encourage them to opt
for legal representation rather to defend themselves.”
[160] In my view a
magistrate is obliged even during pre-trial proceedings to adequately
inform an accused person of his entitlement to “the free
legal representation system” in order to eliminate any
misunderstanding.
[161] The accused’s
highest academic qualification at the time of his arrest was that he
reached Grade 10. It is not clear from the record what his
occupation was at that stage but that the accused faced very serious
charges inter alia of high treason and murder is common cause.
[162] It is recognized
that the entitlement to legal aid in Namibia is not founded in the
provisions of the Constitution, like in South Africa. It is founded
in the provisions of the Legal Aid Act 29 of 1990 and in particular
section 10(2) which reads follows:
“Any person charged
with an offence may apply to the Director for Legal Aid and if the
Director is of the opinion that
(a) having regard to all the
circumstances of the case, it is in the interest of justice that such
person should be legally represented; and
(b) such person has
insufficient means to enable him or her to engage a practitioner to
represent him or her, the Director may grant legal aid to such
person.”
[163] In S v
Sikhipha 2006 (2) SACR 439 SCA at 443 f – g Lewis JA said
the following regarding the court’s duty when explaining the
rights of an accused person:
“It is not desirable
for the trial court of such cases merely to apprise an accused of his
rights and to record this in notes; the court should at the outset
of the trial, ensure that the accused is fully informed of his rights
and that he understands them, and should encourage the accused to
appoint a legal representative, explaining that legal aid is
available to an indigent accused.”
[164] The consequences
of failure by a judicial officer in informing an unrepresented
accused person that he is entitled to legal aid is a fatal
irregularity incapable of being condoned or cured in subsequent
proceedings.
(See S v Tobias
Nahenda (supra); S v Owies (supra).
[165] In the result my
ruling is that exhibit EKM is inadmissible.
Chris Sitale
Mushe
[166] The objection
against the admissibility of his statement (admission) was that prior
to the making of the statement the accused was threatened to give a
statement which had been provided to him by the police. He was
threatened that he would be shot and killed should he fail to give a
statement. In addition his constitutional rights had not been
explained to him neither was he warned according to Judges Rules.
[167] The evidence on
behalf of the State was that the accused had been arrested on a
charge of theft of stock on 10 December 1999 at his village. He was
locked up in the police cells in Katima Mulilo where he was on
12 December 1999 confronted by officer Simasiku about his
involvement in the attack on Katima Mulilo on 2 August 1999. His
warning statement (exhibit EKS) was obtained on 14 December 1999 and
he appeared in court on 16 December 1999. He was
transferred to Grootfontein on 6 April 2000. He gave a statement
(Exhibit EKN) to the magistrate in Grootfontein on 17
July 2000. The police officers denied assaulting, threatening or
intimidating him to give a statement. The accused testified that at
the time of his arrest he had never attended any school.
[168] The accused had
in both his warning statement and in the statement to the magistrate
been informed of his right to legal representation. He had not been
informed of his entitlement to legal aid. The accused claimed to
have been assaulted by various police officers, including officer
Simasiku, which assaults resulted in him giving statements to
Simasiku and the magistrate.
[169] During the
preliminary questions by the magistrate the accused person stated
that he had not been assaulted or threatened with assault to persuade
him to give a statement.
[170] When asked by the
magistrate whether he had any injuries he stated that he had none but
added that he was injured at the time of his arrest when he was hit
with a fire-arm by the police. The magistrate observed an old scar
on his chest.
[171] It was submitted
by the State that the pro-forma used by the magistrate should be
looked at as a whole with all the warnings, questions and answers and
that one should not selectively pick on certain questions and answers
and conclude that requirements have not been complied with. This may
be partially correct, however only one answer indicative of coercion
may raise the suspicion that the statement is not made freely and
voluntarily and such an allegation of assault, threats or promises
must be investigated by the magistrate before taking down the
statement of such accused person. Why was the magistrate not
interested to know how he was injured at the time of his arrest or
why he had been assaulted with a fire-arm by the police ? Further
questioning along these lines could have revealed that the accused
was brought to a confessing state of mind or it could have revealed
that the injuries referred to by the accused person in no way
influenced the accused to make a statement to the magistrate.
[172] As indicated
(supra) the magistrate is not required to cross-examine a declarant.
What is required is further questioning to clarify ambivalent answers
or to explain certain replies for it is the magistrate who must be
satisfied that a statement is given freely and voluntarily.
[173] In my view having
regard to the allegation of assault and the allegation that he had
been injured during his arrest, the magistrate in the absence of any
further enquiry, could not have been satisfied that the statement was
being given freely and voluntarily.
[174] Regarding the
duty of the magistrate to inform an accused person of the entitlement
to legal aid and the failure to do so, I wish to refer to the
authorities discussed (supra).
[175] In my view, for
the reasons mentioned, Exhibit EKN is inadmissible.
John Tibiso
Masake
[176] The objection to
the production of the alleged confession was it was not made freely
and voluntarily, but that the accused was tortured by members of the
Namibian Police which torture and threats resulted in the accused
person presenting a story to the magistrate which originated from the
police. He stated that he was informed by an officer (the late
Chizabulyo) that he did not need a lawyer since he was going to be
used as a witness.
[177] The evidence
presented by the State was that the accused was arrested during the
first week in January 2001 in Katima Mulilo. On the 5th
of January 2001 Sergeant Evans Simasiku obtained a warning statement
(Exhibit EJH) from the accused person. On 16 January 2001 he was
taken to the magistrate in Katima Mulilo who recorded a statement
(Exhibit EJJ) of the accused. On 22 January 2001 he pleaded in
terms of the provisions of section 119 of Act 51 of 1977 in the
Grootfontein magistrate’s court (prescribed over by a different
magistrate than the one who took down his statement in Katima
Mulilo).
[178] The magistrate
who took down the confession of the accused informed him of his right
to legal representation of his choice but did not inform him that he
is entitled to apply for legal aid.
[179] During
cross-examination of the magistrate who recorded the confession, she
was asked having regard to the fact that the accused person was an
uneducated person, and that he faces serious charges whether she was
not obliged to advise the accused person to obtain legal
representation before continuing with the confession. The magistrate
stated that she is not a legal advisor but assisted the
accused by telling him that he needs legal representation before
giving a confession.
[180] It is a matter of
semantics whether a magistrate is bound to advise or assist an
undefended accused person, what is of importance is that she has a
duty particularly where an unrepresented and uneducated person
appears before her to inform the accused person to obtain legal
representation specially in the light of the very serious charges the
accused is facing.
[181] I have (supra)
referred to relevant authorities concerning the duty to inform an
accused person of his right to legal representation and the
consequences of such failure to inform an uneducated and
unrepresented person of his or her entitlement to legal aid.
[182] In this
particular instance the failure of the magistrate to inform the
accused person amounts to a fatal irregularity.
[183] The fact that the
rights of an accused person had been explained more than once (i.e.
in the warning statement and the confession) cannot be of any
assistance where both explanations were fatally defective.
[184] It was submitted
by the State that the Court should have regard to the section 119
proceedings in the Grootfontein Magistrate’s Court on 22
January 2001. In terms of his explanation the accused admitted in
court that he committed high treason. During these proceedings the
accused at some stage indicated to the court that he needed legal
aid. The magistrate asked the accused whether he would like to plead
to the charge and thereafter apply for legal aid to which the accused
person agreed. This in my view is an irregularity committed by the
magistrate. The accused should first have been given the opportunity
to apply for legal aid before any charge was put to him.
[185] I am furthermore
unable to see how what was said in court proceedings four days after
the recording of the confession may have had any bearing on the issue
of voluntariness. It can further not be argued that the accused
person had been aware of his entitlement to legal aid where he had
been informed of such entitlement after he had given a
statement to the magistrate.
[186] Where an accused
person’s right to legal representation has not adequately been
explained to him he would not have been in a position to make an
informed decision whether or not he would be better off without legal
representation.
[187] My ruling
regarding exhibit EJJ is that for the reasons mentioned it is
inadmissible.
[188] As I have
indicated (supra) where there are allegations that an accused
has been forced to give a statement to the police the important
question is to what extent did such force influence his presence
before a magistrate.
[189] This was aptly
stated in S Mpetha and Others (2) 1983 (1) 576 CPD at 593 H
with reference to an article by AP Paizes in the South African
Journal of Criminal Law and Criminology vol. 5 No 2 (July 1981) at
133:
“The proceedings at the
‘mansion’ (the Court) cannot be divorced from the
procedure in the ‘gate house’ (the police station) and
the Judge should take care to ensure that the confession presented in
the ‘mansion’ was not improperly obtained in the ‘gate
house’.”
[190] In my view a
magistrate who is requested to take a statement from an accused
person, especially where such accused person faces serious charges,
has the same obligation.
[191] I agree with
Williamson J where in Mpetha supra at 585 D he said:
“An improper influence
which is trivial must be ignored; so also an improper influence,
which through not trivial in itself, is shown in fact not to have had
any meaningful influence on the will of the confessor”.
[192] The question put
differently that should have been determined by the magistrate, in
those instances where there were allegations of assaults, threats or
other undue influence was, whether those factors had dissipated by
the time the statement was made?
[193] The answer to the
aforementioned question could only have been obtained if the
magistrate had made the required investigations.
[194] It must be borne
in mind that the investigating officers have from the arrest of the
accused persons at least until they appeared before the respective
magistrate’s and thereafter, easy access to the accused
persons, and that what was said many years ago in R v Barlin 1926
AD is still applicable today in the determination of the question
of voluntariness. At 465-466 in Barlin the learned Chief Justice
said:
“A police officer who
has charged or arrested an accused person, or who has him in his
custody, occupies in regard to that person a very special position of
authority – one which may in itself strongly affect a weak or
ignorant man”
and furthermore:
“For though a police
officer should be unhampered in the prosecution of enquiries while
investigating a crime it is not desirable that he should question
those whom he had definitely decided to arrest or has arrested. The
right of interrogation at that stage is apt to be abused, and
questions are likely to be put, not to investigate the offence, but
to manufacture evidence against the person whom it has been decided
to charge”.
[195] It is common
cause that some accused person had, months after they had been
deposed to warning statement, been approached by investigating
officers in Grootfontein prison, with the view to get the accused
person to make statements before magistrates.
[196] A number of
undefended accused persons earlier during the trial refused to attend
the court proceedings until such time as the State has closed its
case and were absent when the court received statements allegedly
made by them to different magistrates.
[197] It was submitted
on behalf of the State that no prejudice would follow should the
court at this stage come to a decision regarding the admissibility of
those statements. It was submitted that since a ruling in a
trial-within-a-trial is interlocutory, no prejudice would follow
since the accused persons will again attend the court proceedings.
It was submitted that since there was no evidence to gainsay the
evidence presented by the State that the statements of the undefended
accused persons must be accepted as admissible evidence against them.
[198] It would be an
incorrect approach to admit the statements automatically merely
because the State’s case is unopposed. It is necessary, in my
view, to look at each statement in order to determine whether the
admissibility requirements have been proved by the State beyond
reasonable doubt.
[199] In Mofokeng
(supra) it was stated that a court which has found an accused
person to be an unsatisfactory witness is not relieved of the duty of
weighing up the evidence as a whole in order to decide whether the
prerequisites of admissibility have been proved beyond reasonable
doubt. This is equally applicable in cases where the accused persons
have not challenged the State’s case.
[200] If during a
trial, and at the close of State’s case, there is found to be
no prima facie case against the accused, it is not necessary
for an accused person to testify at all, and such an accused person
may be discharged at the close of State’s case. It is in my
view necessary to decide whether the State has prima facie
(complied with) the admissibility requirements in respect of
statements to magistrates before considering the consequences of the
failure of the accused persons to challenge the evidence presented on
behalf of the State.
[201] I shall therefore
consider the contents of the various statements in order to decide
the question of admissibility.
[202] Ndala Saviour
Tutalife appeared before the magistrate in Grootfontein on 18
November 1999. His right to legal representation was explained. He
replied that he needed no representation but would need such
representation during the trial. He was not informed that he may
apply for legal aid. He informed the magistrate that he sustained
injuries at the stage he was in Katima Mulilo and that the injuries
were sustained “by a sjambok”. The magistrate
observed a vague line on his back. He further informed the
magistrate that he voluntarily gave a statement to the police on 14
November 1999 in the district of Gobabis and that he wished to repeat
the statement because “it is the truth and I feel it will
carry more weight done before a magistrate”.
The magistrate during
her testimony stated that she observed a vague line, 25 cm in
length on his back.
[203] The magistrate
did no further investigation in the sense of questioning the accused
why he had been assaulted with a sjambok.
[204] Postrick Mario
Mwinga appeared before a magistrate on 12 November 1999 in
Tsumeb. His right to legal representation was explained. He stated
that he did not want to obtain legal representation at that stage.
He stated that he has not been threatened or assaulted to make a
statement and further stated that he was free of injuries.
[205] He informed the
magistrate that he had previously given a statement to Sgt.
Popyeinawa. When asked when and under what circumstances he stated:
“Warrant Officer Bobby
from Katima Mulilo police told me that I must make a statement to
them. I was taken to Popyeinawa.”
Asked why he wished to
repeat the statement he said:
“Sgt. Popyeinawa come
to my cells before lunch today and said I must give a statement
before a magistrate and I said I am willing to do so.”
[206] He was not
informed that he may apply for legal aid.
[207] The magistrate
did not investigate the circumstances under which he was told to make
a statement, why he was told to make a statement and why it was
necessary to repeat such a statement to a magistrate.
[208] Joseph Kamwi
Simawhewhe appeared on 15 September 1999 before a magistrate in
Grootfontein. His right to legal representation was explained and he
elected “to make a statement without the assistance of a
legal representative”. He informed the magistrate that he
had sustained injuries. To the question how he sustained these
injuries the following appears:
“Scar/cut – head
on the left eyebrow – mark on right side of head below the ear
– scars counted ± 20 marks on the back, can see the
scar/cut above left eye, marks on the back – about 8 times
beaten with sjambok, with branches.”
[209] He informed the
magistrate that he had previously given a statement to a soldier on
24 August 1999 in a military camp and his reply to the question why
he wanted to repeat the statement was:
“Maybe you want to
hear it. I want to tell you in short.”
[210] To the question
what was the date of the commission of the alleged offence in
connection with which he wanted to give a statement he replied:
“I did not commit a
crime during 1999.”
[211] He was not
informed that he may apply for legal aid. The magistrate, in spite
of the extensive visible injuries failed to make any further
investigation.
[212] Sylvester
Lusiku Ngalaule appeared on 15 September 1999 before a magistrate
in Grootfontein. His right to legal representation was explained.
He replied that he wanted to give his own statement and that he
understood his rights. He informed the magistrate that he had been
arrested on 2 August 1999. He informed the magistrate that he was
beaten with a sjambok on his back and that he was hit with the butt
of a rifle on his head. The observation by the magistrate was as
follows:
“Shows many scars and
marks on the back and a knob on the back of the head.”
[213] He informed the
magistrate that he had previously given a statement in a military
base on 24 August 1999 and that he wished to repeat his own statement
to the magistrate.
[214] The magistrate
again in spite of the extensive visible injuries failed to pose any
further questions in order to satisfy him that the accused has not
been assaulted in order to give a statement to the magistrate. The
magistrate did not explain to the accused that he may apply for legal
aid.
[215] Charles Mukena
Samboma appeared before a magistrate on 31 March 2001 in Katima
Mulilo. His right to legal representation had been explained to him.
He chose not to make use of the services of a legal representative.
He was not informed that he may apply for legal aid. He informed the
magistrate that he was free from injuries and that he had not been
assaulted or threatened to give a statement to the magistrate. He
informed the magistrate that he had previously given a statement to
Sergeant Simasiku when he was arrested and had handed himself over
“to the State”. He further informed the
magistrate that he wished to repeat the statement because he wanted
to show the Government that he was sorry.
[216] George
Masialeti Liseho appeared before a magistrate on 3 May 2000 in
Grootfontein. He was informed of his right to legal representation
to which he replied:
“No. I want to give my
confession now. However I will later apply for legal aid.”
[217] He informed the
magistrate that he had not been assaulted to give a statement. He
further informed the magistrate that he had previously given a
statement to the police during March and that he had not been harmed
at that stage; that he wished to repeat the statement because he
wanted to tell the truth instead of lies.
It is not clear whether
the magistrate informed the accused that he may apply for legal aid
(no provision for such a question was made on the pro forma) or
whether the accused himself had known at that stage that he is
entitled to apply for legal aid.
It makes in any event
no difference. I have perused the content of the statement and in my
view the statement amounts to neither a confession nor an admission.
It is an exculpatory statement. It is further trite law that an
admission or a confession may only be used against the maker of such
a statement. The State is therefore precluded from using the
statement against any of the persons whose names appear in that
statement.
I therefore need not
make any finding in respect of this statement (Exhibit EHU).
[218] Davis Chioma
Maziu appeared before a magistrate on 3 May 2000 in Grootfontein.
He was informed of his right to legal representation and replied as
follows:
“I would like to state
my statement before I engage a lawyer.”
[219] He informed the
magistrate that he had not been assaulted to give a statement, that
he had previously given a statement to the police on
14 April 2000 which statement had been concluded on 16 April 2000,
that he was not forced to give a statement, and that he wished to
repeat the statement because he wanted to show “remorse to
the Government.”
[220] No question was
asked by the magistrate (in respect of something which was quite
unusual in my view) as to why the statement to police was given over
a period of two days.
The accused person was
not informed that he may apply for legal aid.
[221] Francis
Buitiko Pangalo appeared before the magistrate on 4 May 2000 in
Grootfontein. His right to legal representation was explained and he
elected not to be assisted by a legal representative. He was not
informed that he may apply for legal aid. He stated that he had not
been assaulted, that he previously on 16 April 2000 had given a
statement to members of the police force, in a good atmosphere, and
that he wanted to repeat that statement because he wanted to tell the
truth.
[222] Roster Mushe
Lukato appeared before a magistrate on 5 May 2000 in
Grootfontein. His right to legal representation was explained to him
and he wished for no legal representation. He informed the
magistrate that he was not assaulted to make a statement, that he
previously gave a statement on 16 April 2000 to a police
officer, in a good atmosphere, and that he wished to repeat that
statement because he wanted the “law officer” to
hear what he was saying.
[223] Why the accused
person regarded the magistrate as a “law officer”
does not appear from the statement. This is a point that the
magistrate could have clarified despite the fact that it appears from
the statement that the accused has been informed that he was in the
presence of a magistrate who has no connection with the police
investigation.
He was not informed of
his entitlement to legal aid.
[224] Kisco
Twaimango Sakusheka gave his statement to the magistrate in
Grootfontein on 5 May 2000. He was informed of his right to legal
representation and elected not to be legally represented. He was not
informed of his entitlement to legal aid. He informed the magistrate
that he had not been assaulted or threatened to make a statement. In
respect of the issue the magistrate observed an old cut on his right
ear and recorded as follows:
“He told me that he had
a sore when he was a baby and the sore caused that cut.”
[225] He further
informed the magistrate that he had previously given a statement to
the police, freely, on 16 April 2000 and that he wanted to repeat it
“to tell the truth to the magistrate”.
[226] Frederick
Kabodontwa Luthehezi appeared before a magistrate on 4
May 2000 in Grootfontein. His right to legal representation was
explained and he elected to have no legal representation since he
wanted to confess. It was not explained that he may apply for legal
aid. He informed the magistrate that he had not been assaulted to
make a confession, that he had previously on 15 April 2000
given a statement to a police officer, that he gave the statement to
the officer freely and voluntarily and that he wished to repeat the
statement in order to give his true testimony.
[227] Andreas Puo
Mulupu appeared before a magistrate on 19 July 2000 in
Grootfontein. He was informed of his right to legal representation
and he informed the magistrate that he wanted to give his statement
“without the assistance of a lawyer”. He informed
the magistrate that he was not assaulted to give a statement to the
magistrate, that he had been stabbed on his legs with the bayonet of
a rifle, in Zambia by Zambian soldiers, that he had previously given
a statement to a police officer (Sgt. Chizabulyo) on 23 December
1999, freely and voluntarily, and he wished to repeat it because he
would like to confess before the magistrate what he had done.
He was not informed
that he may apply for legal did.
[228] Ziezo Austin
Lemuha appeared before a magistrate on 15 August 2001 in
Windhoek. He was informed of his right to legal representation. He
opted not to be represented. He was not informed that he may apply
for legal aid. He informed the magistrate that he had not been
assaulted to give a statement to the magistrate, that he had
previously given a statement to a police officer on 14 August 2001.
His reply to the question why he wished to repeat the statement was:
“No”.
The magistrate
proceeded to state that the accused “freely and voluntarily
desires to make a statement” contrary to the reply recorded
by the magistrate.
The magistrate should
not have continued with the taking down of a statement in violation
of the constitutional right of the accused not to incriminate
himself.
[229] For this reason
alone the statement should be disallowed. The statement (Exhibit
EJB), is ruled to be inadmissible.
[230] If one has regard
to the information contained in some of the statements regarding
allegations of coercion and the failure of the respective magistrates
to make the necessary further enquiries then these statements
referred to fall within the compass of the authorities referred to
(supra) dealing with the consequences of failures by
magistrates to investigate allegations of coercion and the failure to
clarify ambivalent statements.
[231] Similarly in
respect of all the statements of the undefended persons there is no
evidence (save the one referred to) that the accused persons had been
informed of their entitlement to apply for legal aid. I have (supra)
discussed this failure and the consequences of such failure, namely
that it is tantamount to a violation of the fundamental right to
legal representation.
[232] There is no
evidence that any one of the undefended accused persons was a person
who ought to have known that he was entitled to assistance in the
form of legal representation, at State expense.
[233] These failures
referred to in paragraphs 230 and 231 either singularly or in
combination (where applicable) violate the right of the accused
person to fair pre-trial procedures.
[234] I need to comment
on the approach of some of the magistrates which to a large extent
explains the failures referred to in paragraph 230 and 231. All four
magistrates who testified strictly adhered to the questions raised in
the pro forma document.
[235] In respect of
those statements in respect of which the accused persons had informed
the magistrate that he had been assaulted or forced by the police to
give a statement (warning) one approach by a magistrate was that she
assumed because of the long time lapse (approximately seven months)
between the alleged assault by the police and the appearance of the
accused before her for his “confession”, that the
assaults referred to in no way influenced the voluntariness of his
statement.
[236] Another approach
was the fact that an accused person indicated that he had previously
made a statement to the police and had been assaulted or forced to do
so was not considered to be her “problem”. What
was important to this magistrate was that the statement recorded by
her was given freely and voluntarily. It was not deemed necessary to
make an enquiry into the circumstances under which the assault was
allegedly perpetrated and why it was necessary to repeat such
statement.
[237] A further
approach was if an accused person had given, in reply to the question
whether he had been assaulted, a negative answer, that would be the
determinant indicator of voluntariness, irrespective of the fact that
the accused subsequently informed the magistrate that he had been
assaulted by the police to give a statement. A reply which flew in
the face of a previous reply need also not be clarified according to
this magistrate.
[238] One of the
magistrates, though, testified that where an accused person informs
her that he has been assaulted by the police to give a statement she
would not have taken down any statement. Incidentally all four
accused persons who appeared before this magistrate informed her that
they had not been assaulted, threatened and neither had promises been
made to them to make their statements to the police, statements which
they intended to repeat before her.
[239] One of the
magistrates had during cross-examination on the issue of legal
representation, without being prompted in this regard, mentioned that
the issue of statutory legal aid did not appear in the pro forma
document she was required to complete. This in my view is an
indicator that she must have been aware that an accused person is
entitled to apply for legal aid.
[240] Three magistrates
who took down statements (Exhibits EHP, EHR and EJB) did not testify.
[241] If one has regard
to the approaches referred to, it explains why no further enquiries
were made in appropriate instances and why accused persons had not
been informed of their entitlement to legal aid.
[242] It is needless to
state that these approaches are not conducive to fair pre-trial
procedures which in turn maybe a catalyst for the violation of the
fundamental right of an accused person to a fair trial.
[243] In the result all
the statements handed in as exhibits are declared to be inadmissible
as evidence against the accused persons in the main trial.
__________
HOFF, J
ON BEHALF OF THE
STATE: ADV. JANUARY
(TRIAL(S)-WITHIN-A-TRIAL
–
CONFESSIONS)
ADV. JULY
Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL
ON BEHALF OF THE
DEFENCE: MR SAMUKANGE
MR
KRUGER
MR NEVES
MR
KACHAKA
MR McNALLY
Instructed by:
DIRECTORATE OF LEGAL AID
S v Malumo (CC 32/2001) [2010] NAHC 20 (01 March 2010);