CASE NO.: CC
25/2010

IN
THE HIGH COURT OF NAMIBIA

HELD
AT OSHAKATI

In
the matter between:

THE
STATE

versus

RASALUS
KAPIYA
…............................................................................ACCUSED

CORAM:
TOMMASI J

Heard on: 14 June
– 17 June 2011

Delivered on: 20
June 2011

JUDGEMENT:
TRIAL WITHIN A TRIAL

TOMMASI J:
[1] The Court was
called to adjudicate the admissibility of the warning statement made
by the accused to Sergeant Sankwasa. The defense objected to the
handing into evidence of the warning statement and advanced the
following as the basis for the objection: The accused was not sober
at the time that he made statement and his constitutional rights were
not explained to him. The State called Sergeant Sankwasa in a
trial-within-a-trial and the defense called the accused to testify
under oath.

[2] The
admissibility of statements is governed by section 219(A)¹.
The relevant part thereof provides as follows:

“(1) Evidence of any
admission made extrajudicially 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 ….”

It is further
trite law that the onus is on the State to prove beyond reasonable
doubt that an admission had been made freely and voluntarily. In S
v MALUMO
AND OTHERS ²
Hoff J succinctly
stated the legal position as follow at page 40, paragraph [13]:

“The jurisdictional
requirements for admissibility of admissions and confessions (ss 217
and 219A of Act 51 of 1977 as amended) have been provided with added
impetus by the inclusion in the Namibian Constitution of the
provisions of art 12 and, in particular, art 12(1)(a): the right to a
fair trial; art 12(1)(d): presumption of innocence; and art 12(1)(f):
the right against self-incrimination and the right to have evidence
obtained in violation of art 8(2)(b) excluded.”

[3] In this matter
the accused averred that he was not in his sober senses when he made
the statement. After evidence has been led it was clear that the
accused was not under the influence of alcohol or any drugs at the
time and fully comprehended what was communicated to him by Sergeant
Sankwasa. Ms Mugaviri, Counsel for the accused, submitted that it was
not meant that the accused was under the influence of alcohol or
drugs but rather that he was not in a mental state to appreciate what
was communicated to him. She however conceded that there was no
evidence to support the objection and abandoned this ground. For this
reason I do not deem it necessary to dwell on this ground of
objection.

[4] Sergeant
Sankwasa testified that the accused was in custody at Ohangwena
police station. She noted from the cell register that the accused was
arrested but not yet charged. She took up the matter with the unit
commander who instructed her to charge the accused. Although this was
a matter that was to be dealt with by a specialized unit, Women and
Child Protection Unit, it was decided that she should charge the
accused. This unit is situated at Eenhana, some 70 km from Ohangwena
Police Station, and the accused had to be charged before the expiry
of 48 hours.

[5] She further
testified that she obtained the docket and arranged for the accused
to be brought to her office. She introduced herself to the accused
and showed him her appointment certificate. The accused acknowledged
that he was aware of the fact that she is a police officer. She
informed him that she is an investigating officer and wanted to know
if he was aware that he has been charged with rape. The accused
confirmed that he was aware of the charge against him. She informed
him that he was not forced to answer any questions and that, if he
gives a statement, it would be used in a court of law. She also
informed him that he has a right to a legal representative of his own
choice or, if he cannot afford it, he could apply for a state lawyer
to be appointed. The accused indicated that he did not need a lawyer
and that he would make a statement. After she took down the statement
she read it back to him and he signed it.

[6] She further
testified that: she did not deem it necessary to have an interpreter
present as she spoke to the accused in Oshiwambo and he understood
and replied in Oshiwambo; and she wrote down what the accused said in
his warning statement (J17) in English. According to her observations
the accused was sober and normal. She testified that the accused was
rude because he kept quiet and did not answer her.

[7] During
cross-examination the possibility was suggested that the accused kept
quiet because he was not giving his statement freely and voluntarily.
Sergeant Sankwasa responded that she did not know why the accused
kept quiet but was adamant that the accused spoke freely to her. When
counsel wanted to know why she considered this to be rude, she
responded that it was not really rudeness but the accused kept quiet
when she asked him if he understood. When she was confronted with the
accused version that she did not inform him that his statement will
be used in court and that she did not explained his right to remain
silent, she insisted that she informed him that the statement would
be used in court; and that she gave the accused a choice to give his
statement to her or the court. She also testified that she did not
give the statement to the accused to read but that she read it to him
in Oshiwambo (I believe she meant that she translated what she wrote
down in English into Oshiwambo).

[8] The accused
testified that he was indeed sober at the time when he was taken out
of the cell and taken to the office of a police officer. He confirmed
that: she had shown him a document and introduced herself; she
informed him of the charge; he was aware of the fact that it was a
serious offence; and she informed of him of his right to have a
lawyer of his own choice or, if he cannot afford a lawyer, that one
could be appointed for him by the State. He further testified that he
opted to conduct his own defense and that he exercised this choice
freely. He testified that he would keep quiet during the interview
because he did not quite understand the questions; and he was very
angry at the time because of the allegations made against him. He
further testified that the police officer kept on saying “hurry
up” and “You have to answer the question”.
Although he did not feel she was harassing him but wanted him to
hurry up and answer the question. He denied that he was informed of
his right to remain silent and that his statement would be used in
court. He confirmed however that Sergeant Sankwasa informed him that
he could give his statement to her or in court. He, on a question by
the Court, responded that he understood that he did not have to make
a statement then and there and that he could make it in court.

[9] Counsel for
the State argued that the Court must consider the evidence in its
totality and look at the probabilities. He argued that it is not
probable that Sergeant Sankwasa would explain some of the rights and
not the other. He submitted that the State had succeeded to prove
beyond reasonable doubt that Sergeant Sankwasa explained the right to
legal representation, the right to apply for a legal practitioner to
be appointed by Legal Aid; and the right to remain silent.

[10] Counsel for
the accused submitted that it is clear from the evidence that the
right to remain silent was not made clear to the accused. She argued
that the accused understood that he had a choice to make his
statement either to Sergeant Sankwasa or to court and that such an
explanation did not include the right not to make a statement at all.

[11] The evidence
of both Sergeant Sankwasa and the accused indicated that his rights
were indeed explained to him. There is in essence no dispute that he
was explained his right to legal representation; that he understood
it; and that he exercised this choice freely. What was however in
dispute was whether his right to remain silent was clearly or
correctly explained to him.

[12] The question
is whether the Court, on the evidence presented, is satisfied that
the accused was informed of his constitutional right in terms of
article 12(1)(f) that he was not compelled to give evidence against
himself. From the testimony of Sergeant Sankwasa it is clear that she
did not deem it necessary to obtain the assistance of an interpreter.
She therefore informed the accused in Oshiwambo what she understood
to be his right to remain silent. She testified that she informed the
accused that:

(a) he was not
forced to say anything;

(b) the statement
would be used in court

(d) he has a
choice to make a statement to her or the court.

[13] The accused,
to his credit, candidly admitted that he understood her explanation
in respect of his right to legal representation and exercised his
right freely. He furthermore admitted that he understood that he did
not have to give a statement to the investigating officer. The
question however is whether it can be said that he understood that he
also did not have to give testimony against himself in court.

[14] The above
forms the basis of some of the concerns raised by the explanation
given by Sergeant Sankwasa. According to her the accused was rude by
not indicating that he understood her. This should have alerted her
that perhaps the accused did not fully appreciate what she was
explaining to him. The explanation which should have been given to
the accused was simply that he has a right to remain silent. This
would include the right not to say anything or give a written
statement to the police, the right not to give an explanation in
terms of section 115 and the right not to testify during trial. The
explanation should be given in clear language and should not leave
room for confusion. Seargent Sankwasa’s explanation could be
construed in the manner it was understood by the accused i.e that he
has to give a statement, if not to her then to the court which
clearly was not a correct interpretation of Article 12(1) (f) which
provides that:

“(f)
No persons shall be compelled to give testimony against themselves or
their spouses, who shall include partners in a marriage by customary
law, and no Court shall admit in evidence against such persons
testimony which has been obtained from such persons in violation of
Article 8(2)(b) hereof.”

[15] I am not
convinced that the accused was informed in clear and unambiguous
terms of his right to remain silent. The circumstances present during
the interview was furthermore certainly not ideal given the testimony
of Sergeant Sankwasa that the accused hesitated to confirm that he
understood what he was informed. I entertain serious doubt whether
Sergeant Sankwasa gave the accused a proper explanation of his right
to remain silent. An accused needs to be informed in clear terms what
his right is so as to make an informed choice before it can be said
that it was made freely and voluntarily.

[16] To this
extent the State thus failed to prove beyond reasonable doubt that
the statement was made freely and voluntarily as is required by
section 219(A).

[17] In the
premises the statement of the accused is declared to be inadmissible
as evidence against him in the main trial.

________________

Tommasi
J