CASE NO.: CC 13/2010
IN
THE HIGH COURT OF NAMIBIA
HELD
AT OSHAKATI
In
the matter between:
THE
STATE
and
ALBIUS
MOTO LISELI ACCUSED
CORAM:
TOMMASI
J
Heard
on: 02, 03 & 10.04.2012
Delivered
on: 24.09.2012
JUDGEMENT
- TRIAL-WITHIN-A-TRIAL
TOMMASI
J: [1]
The accused has been indicted with several counts inter alia High
Treason. Counsel for State wanted to introduce evidence of extra
curial admissions, pointing out and a confession by the accused. The
accused objected to the admissibility of this evidence and a
trial-within-a-trial was held to determine the admissibility of the
evidence.
[2]
The grounds for objection raised by the accused were as follow:
The accused was not informed
fully of his right to legal representation at the time of his arrest
and during the currency of his interrogation;
The accused was not informed
of his right not to incriminate himself;
[3]
The legal framework and general principles applicable to the
admissibility of admissions and confessions has been fully dealt with
in S v MALUMO AND OTHERS 2010 (1) NR 35 (HC) in paragraphs [1] –
[20] and there is no need for this Court to repeat what was stated
therein.
[4]
Oral
statement made to Inspector Shinana:
Inspector Shinana testified that he had a consultation with the
accused and his family on 5 January 2009. He wanted to know from them
whether he could help them. The family informed him that the accused
had been living in Zambia during 2003. He hereafter proceeded to
interview the accused. It was during this interview that the accused
made certain admissions.
[5]
Inspector Shinana testified that when the family informed him that
the accused had lived in Zambia during 2003 he suspected that the
accused had illegally left the country and lived in Zambia illegally.
He testified that the police officers normally “clear
people who were living in other countries, whether legal or illegal
when they are coming back home.”
[6]
It was common cause that, at the time in question, a lot of Namibians
from the Caprivi district left the country and were residing in
neighboring countries. From the wording used it appears that the
police had to “clear”
persons to determine whether
they were residing in the neighboring countries legally. It was not
entirely clear what he meant by stating that he suspected the accused
of having lived in Zambia illegally. It is not an offence for
Namibians to live in other countries. It could either mean that he
suspected the accused of having left Namibia in contravention of the
provisions of the immigration laws of Namibia or that he suspected
the accused of having committed treason. Suffice it to say that
Inspector Shinana admitted that he suspected the accused of having
committed an offence after he received information that the accused
was living in Zambia during 2003 and before he interviewed the
accused. It was common cause that he did not inform the accused at
any stage during or after the interview of his right to legal
representation and his right to remain silent.
[7]
In S v Malumo
and Others
it was held that a suspect
should not be in a worse position than an accused that has been
arrested and that he should be warned in terms of the Judges Rules;
should be informed of his right not to incriminate himself; and his
right to legal representation.
[8]
Mr Hengari submitted in argument that the testimony of Inspector
Shinana was of no consequence since it was based on hearsay evidence
received from the family of the accused. It is of little importance
what he heard. What is of importance however is whether he was aware
that the accused was a suspect and if so whether he cautioned the
accused in accordance with the Judges Rules and explained his rights
in terms of article 12 of the constitution to the accused.
[9]
Mr Shileka, appearing for the State submitted that this Court has
discretion to admit the testimony of this witness since: he had been
bona fide unaware that the accused was a suspect when he asked him
for an explanation; and no pressure or influence had accordingly been
exercised on the accused to impart information. He referred the Court
to S v
Kamudulunge
in this regard. I am in
agreement with the dictum of my brother Liebenberg J in S
v Kamudulunge,
supra.
[10]
There was no evidence that the accused was forced by either his
family or Inspector Shinana and I therefore conclude that whatever
statement he made to Inspector Shinana was done voluntarily. The
dispute was whether the accused was warned in accordance with the
Judge’s Rules and informed of his constitutional rights not to
incriminate himself and his right to be legally represented.
[11]
The facts of the case referred to by the State and the facts herein
may be distinguished. In S
v Kamudulunge, supra, the
accused entered the charge office, went behind the counter where he
threw down a box of matches on the desk before sitting down. The
Court found that “besides
the accused’s akward behavior upon his arrival at the police
station, it could not have been expected by the police officer, on a
question what he was looking for, that the accused would make
self-incriminating statements; and the moment he did, he was stopped
and his his rights, inter alia, to remain silent, explained to him”
In S
v Van der Merwe
the Court found that the
investigating officer had not realised that he was talking to a
possible suspect. Inspector Shinana suspected the accused of having
“lived” illegally in Zambia during 2003 after the family
informed him of this fact and before the accused made a statement to
him. It was at this point that he should have cautioned the accused
and failed to do so. He did therefore not have a bona fide belief
that the accused was not a suspect. Under these circumstances the
accused’s constitutional rights in terms of article 12 were
infringed and I rule that the statement made to Inspector Shinana
inadmissible.
[12]
The warning
statement:
Detective Warrant Officer Kambungu, a member of the High Treason and
Counter Terrorism Unit, testified that he formally charged the
accused on 7 January 2009. He had used a pro forma form referred to
as a Pol 17 for this purpose. He testified that he completed the
first few pages containing the general information of the accused.
When he started putting questions on the forth page of the form, the
accused informed him that he did not understand him very well and
requested that the services of an interpreter. He then recorded this
on the warning statement as follow:
“Interview suspended by 17:50 as
the suspect is not hearing English very good (sic) and requested the
service (sic) of an interpreter, thus the interview will continue on
2009.01.09 at Ngoma Police Station, board room A20.”
[13]
Very little weight can be attach to this warning and explanation of
the accused rights on this occasion given the fact that the he did
not fully understand what was explained to him. It is however of some
importance that when the accused was asked whether he needed a legal
representative at that stage, he indicated that he would need legal
representation at a later stage. When Warrant Officer Kombungu was
cross-examined as to why he did not clarify with the accused what he
meant by “at
a later stage” he
indicated that there is no provision made in the pro forma form for
additional questions and that he does not have the right to amend or
alter it.
[14]
Warrant Officer Kombungu confirmed that the accused, when he appeared
in the district court on 8 January 2009 for the first time, was
informed by the magistrate of the seriousness of the offence he was
charged with and was encouraged to apply for legal aid. The accused
was persuaded to apply for legal aid and he was then assisted to
complete the application forms on this date.
[15]
On 23 January 2009 Warrant Officer Kombungu returned to Ngoma Police
Station in order to record the warning statement of the accused.
Inspector Simasiku, as the interpreter and Constable Silishebo whose
function was to secure the safety of the persons, were also present.
All three officers were employed in the High Treason and Counter
Terrorism Unit at the time.
[16]
On this occasion the same pro forma form was used. The accused was
informed that he is not obliged to answer any question put to him or
to make any statement but warned that what he would choose to say
would be taken down in writing and it may be used against him at a
later date as evidence in a court of law.
[17]
The accused was further informed that he has a right to consult a
legal practitioner of his own choice and at his own cost prior to
deciding whether he should remain silent or answer questions or give
an explanation; and to have the legal representative assist him when
answering questions or when giving an explanation or point out any
object or place. Both Warrant Officer Kombungu and Inspector Simasiku
testified that the accused was informed that he could apply for legal
aid although this was not evident ex facie the pro forma warning
statement they had used at time. Inspector Simasiku testified that he
explained the right to legal aid in very simple terms as the accused
was not a well educated person. The accused confirmed that he
understood what was explained to him. The following question and
answer was recorded:
“Question:
Do you now want a legal representative?
Answer:
No”
[18]
Warrant Officer Kambungu was asked what the accused’s reply was
after he was explained that he could apply for legal aid during his
evidence in chief. No clear answer was given to this question.
Warrant Officer Kombungu referred to his first appearance in the
district court and the first time when the accused did not understand
him properly. I pause here to mention that on the date of the
interview, Warrant Officer Kombungu had personal knowledge that the
accused indicated during the first interview that he would require
the services of a legal representative at a later stage and that he
had applied for legal aid.
[19]
Inspector Simasiku testified in his evidence in chief that the
accused indicated that he did not want any legal representation. In
re-examination counsel for the State wanted to know from Inspector
Simasiku what the accused’s response was when his right to
apply for legal aid was explained to him. He answered as follows:
“the
accused … persisted (sic) that he does not want any legal
representative or to make any application somewhere, but that he
wanted to represent himself in his case.”
This answer was clearly not
consistent with the evidence adduced by the State that the accused
had already applied for a legal representative to be appointed by the
Directorate of Legal Aid. When this was pointed out to Inspector
Simasiku he indicated that it is not really inconsistent because the
accused is not well educated and the accused informed him that he
does not want anyone from this Government to represent him in this
case. When the Court asked him to clarify what he meant when he
testified that the accused was not well educated, he informed the
Court that he knew the accused well and to his knowledge the accused
had only completed grade 8 (Standard 6). None of this conversation
appears to have been translated to Warrant Kambungu who just recorded
a simple “no”.
When
Inspector Simasiku was asked why this was not recorded, he simply
stated that he does not know why it was not recorded.
[20]
Mr Hengari submitted that the fact that the accused was not informed
that if he cannot afford to pay for a legal representative that one
would on application be appointed on his behalf, was fatal and the
statement should not be admitted on this basis alone. I cannot agree
with the submission made by Mr Hengari. In S
v Mbahapa
an appellant raised the ground
that a failure of justice occurred as his right to legal
representation was not explained to him by the magistrate. It was
held that in considering whether any failure of justice had occurred
as a result of the magistrate's failure to inform the appellant of
his right to legal representation, that it was reasonable to conclude
from certain statements in the affidavit of the appellant's attorney
filed in support of the application for condonation of the late
noting of the appeal, that the appellant had been well aware of his
right to legal representation. Even if I were to accept that the
accused’s right to apply for legal aid was not explained to him
at the stage the warning statement was taken down, the evidence shows
that the right to apply for legal aid was already explained to the
accused by the magistrate on 8 March 2009. It was also evident that
the accused understood his right given the fact that he in fact
applied for legal aid.
[21]
Warrant Officer Kombungu read the questions and answers appearing on
the pro forma form into the record. During his evidence in chief
whilst reading the questions and answers under the heading “complete
the following only if the suspect/accused wishes to make a statement”
he pointed out that there was a typographical error in that the last
question should be numbered 7 instead of 1. I asked the witness if he
could repeat the answer to question 4 and he indicated that it was
no. Question 4 reads as follow: “Is
this statement of (sic) answer made or given by your own free will”
and the answer recorded was
“no”.
At no time did he make any comment to explain this answer. During
cross-examination the following question and answer were recorded:
“Mr Hengari: Now why did you not …
want to establish why the accused person says no in that instance?
W/O Kambungu: Yes my lady, these
questions were asked after
the statement was read back to the deponent. And
this question number 4, it could be an overview, from the author of
from the deponent himself. I cannot explain on that. But even if I
could realize it, there is no other way to destroy or to attempt to
get another warning statement from the arrested person.” [my
emphasis]
[22]
Not only was it recorded that the accused answer was “no”
to the question whether he gave the statement of his own free will,
but it transpires that these questions (I would assume questions 1 –
7) were asked after the statement was taken down and read back to the
accused. These questions are designed to determine whether the
accused is making the statement freely and voluntarily and this has
to be determined at the outset, i.e before he makes the statement. He
did not testify that he read the questions and answers back to the
accused. Inspector Simasiku however testified that he heard “yes”
when the accused answered and when Warrant Officer Kombungu read it
back to him. It is conceivable that the accused could have said yes
and that Detective Kombungu recorded no but I find it improbable that
he would read the answer back as yes when he had recorded a “no”.
In this respect I find Warrant Officer Kombungu to be a credible
witness who readily conceded that he cannot explain whether the
accused said yes and he made a mistake or whether the accused with
the assistance of the interpreter indeed said no which answer he then
correctly recorded. He further could not explain why he did not
enquire as he was supposed to do on hearing the answer given.
[23]
Mr Shileka argued that the accused did not raise, as a ground, the
fact that the accused did not make the statement freely and
voluntarily and submitted that this was an opportunity which
presented itself to the defense quite unexpectedly. The State bears
the onus to prove beyond reasonable doubt that the accused made the
warning statement freely and voluntarily. The Court has to be
satisfied that the accused, at the time he was making the statement,
did so freely and voluntarily. Although I appreciate that the issue
of voluntariness was not raised as a ground, I wish to point out that
the State was given the opportunity to deal with this issue during
Warrant Officer Kombungu’s evidence in Chief when the Court
pointed it out. The fact that it was not raised as a ground does in
any event not preclude the Court from excluding extra curial
statements by an accused which was not given freely and voluntarily.
The accused did not testify but as stated earlier, the State bears
the onus. The evidential onus shifts only if the State adduced prima
facie evidence that the statement was made freely and voluntarily.
The procedure adopted by the investigating officer was completely
irregular He failed to determine whether the accused: decided to make
the statement without being forced or unduly influenced, had
sustained injuries; was sober; and understand the proceedings i.e the
taking down of the warning statement, prior to taking down his was
warning statement . The Court furthermore cannot ignore the
possibility that the accused indeed responded “no” to the
question posed to him. It is for these reasons that I am not
satisfied that the State has discharged the onus to prove beyond
reasonable doubt that the warning statement was made freely and
voluntarily. It is, under these circumstances unnecessary to deal
with the further arguments raised by counsel for the defense. I
accordingly rule the warning statement to be inadmissible.
[24]
Pointing Out
– On
28 January 2009 the accused was referred to the Regional Crime
Investigating Coordinator, Mr Burger to do a pointing out. He
requested that a court interpreter be arranged and that the accused
be taken for a medical examination. The accused was brought to his
offices where the photographer as well as the interpreter was
present. He introduced himself and recorded what the accused said on
a pro forma form used for this purpose. This document was handed into
evidence by agreement.
[25]
The following information can be cleaned from the pro forma form: The
investigating officer personally approach Chief Inspector Burger and
informed him that the accused wished to point out a scene to him
regarding the Caprivi High Treason case of 1998. The accused was
informed of his right to remain silent, his right to consult a legal
practitioner of his own choice and if he cannot afford a legal
representative, one would be appointed by the State. The accused
indicated that he understood the explanation. The accused was asked
if he wanted a legal practitioner at that time and the accused
replied: “at a later
stage”. He was
informed that he was in the presence of a justice of peace. The
accused was asked hereafter if he was still willing to point out the
scene. The accused replied “yes,
I am still willing to
show you tomorrow – 29-01-2009”.
The following question was put to the accused: “As
you are still to continue with the pointing out, I want to know from
you where you obtained the knowledge about that which you wish to
point out.” The
accused responded as follow: “The
Investigator requested me to show the places to Botswana, to Zambia I
passed”. The
accused, in response to a question whether he was assaulted,
threatened or influenced by any person to make the pointing out,
responded as follows: “No,
I was only requested, nobody forced me”.
The interpreter, Mr Balumbu merely confirmed the evidence given by Mr
Burger,
[26]
The accused opted to remain silent and did not testify.
[27]
Mr Hengari submitted in argument that the accused informed Chief
Inspector Burger that he would want a legal practitioner at a later
stage. He submitted that Mr Burger ought to have probed the accused
to ascertain what he meant with “later” and should have
stopped the pointing out on the basis of the accused’s reply.
He further argued that Mr Burger did not probe the accused after he
informed him that he was requested to do the pointing out in order to
satisfy himself that the accused was doing the pointing out without
any undue influencing.
[28]
Chief Inspector Burger was of the view that a request did not amount
to undue influence. The response by the accused suggests that it was
a mere request which he could have refused if he wanted to and that
he was not forced to accede to the request. The accused did not
testify to indicate what transpired at the time he was requested to
do the pointing out. Although the Court heard evidence that the
accused was unsophisticated, there was no indication on the pro-forma
form that the accused was unduly influence when the request was made.
Under these circumstances the Court cannot speculate that he was
unduly influenced to accede to the request made or put differently:
“The mere possibility
of influence on the accused,…, does not automatically render
the admission or pointing out inadmissible”
[29]
The issue of the failure by investigating team to inform Mr Burger
and his failure to probe what the accused meant when he indicated
that he would want to have a legal practitioner at a later stage, is
dealt with hereunder.
[30]
The
Confession:
The magistrate who took down the confession, Ms Sakala testified that
the accused was brought to her on 6 February 2009 by Sgt Shigweda for
her to take down his confession. She was assisted by an official
interpreter, Mr Shwena Caster. She testified that she explained the
accused’s right to remain silent and his right to legal
representation. To this end she used a form referred to as Annexure A
to explain his right to legal representation and the right to apply
for legal aid. This annexure however was not attached to the
confession. The accused was explained that he has the right to obtain
legal representation before making the statement and was asked
whether he wanted to obtain legal representation as explained to him.
He responded as follow: “Not
now but later in the proceedings”.
[31]
Mr Hengari argued that the accused’s right to legal aid was not
explained. The magistrate in this case testified that she, as a rule,
use an Annexure A to explain the right to apply for legal aid. She
however could not recall that she had advised the accused at his
first appearance that this was a serious matter and that he should
apply for legal aid. The reason she gave for her inability to
remember was that she deals with many cases on a daily basis and it
would be difficult to single out one particular matter. It is for
this reason that it is required of magistrate to accurately record
proceedings in court. I, in the absence of a written record that the
accused was informed of his right to apply for legal, cannot rely on
the testimony of the magistrate who cannot, given the volume of
matters she was handling, reasonably be expected to remember specific
matters. Her evidence was however corroborated by the interpreter who
was present at the time and no reason was advanced why the Court
should not accept her evidence as credible. Furthermore, the accused,
by this time, already knew of his right to apply for legal aid and
had in fact applied. His right to consult with a legal representative
of his own choice or with one appointed by the State was further
explained by Chief Inspector Burger during the pointing out on 28
January 2009. I am satisfied that the accused made an informed
decision when he opted to proceed without obtaining legal
representation first. His reasons for having waived his right to
legal representation are not known.
[32]
Mr Hengari further submitted that the investigating team had a duty
to inform the magistrate and Mr Burger that the accused had applied
for legal aid and they had failed to do so. If I understand the
argument correctly it means that if these witnesses were informed of
the fact that the accused applied for legal aid, they should not have
proceeded with the pointing out or taking down of the
confession/statement under these circumstances. He referred me to S v
KUKAME 2007 (2) NR 815 (HC) in support of this view. He cited the
following extract from this case: “The
right to have access to a lawyer is inextricably linked with the
right not to be compelled to make a confession, which is one of the
requirements for admissibility. By continuing with the interview and
posing further questions which ultimately led thereto that the
accused made a statement, a violation of the accused's constitutional
rights occurred.” The
preceding sentences however shed more light on the peculiar facts of
that case which reads as follow:
“Once the accused
was asked whether he wanted legal
representation before making a statement and
he answered in the affirmative,
no further questions should have been put to him which may have led
him to make any statement. The interview should have been stopped
immediately, except perhaps to determine who the accused's lawyer is
in order for arrangements to be A made for the lawyer to be contacted
(Compare S v Agnew 1996 (2) SACR
535 (C) at 542c)”. Van
Niekerk J, at page 833 J – 134 A – C stated the following
in the afore-said judgment: “Mr
Dos Santos also took issue with the fact that accused was not
specifically explained that he had a right to a lawyer, but I think
the import of the two questions 'Do you have a lawyer?' and 'Do you
want a lawyer?' is clear. By answering 'Not now', the accused clearly
understood that he could have access to a lawyer if he wanted to. In
his evidence he said that, although he knew that he had a general
right to legal representation and specifically at the trial, he did
not know that he needed a lawyer at the stage of the interview. This
is something different to wanting a lawyer. The fact that he might
have needed a lawyer is something he could only realise with
hindsight, perhaps after having consulted with his lawyer. Even if
Scott had expressly advised him of his right to legal representation
he would not then have realised that he needed a lawyer. I agree with
what was stated in S v Vumase 2000 (2) SACR 579 (W) at 581, namely
that there is no duty on a policeman to advise an accused to obtain
legal representation before making a statement.
In
this matter the accused’s answer both before the pointing out
and before making the confession/statement cannot in any way be
construed as being affirmative. I do not believe that the statement
by the accused was unclear. The accused having been informed that he
had a right to consult with a legal representative before making the
statement/confession and pointing out and having applied for legal
aid, on the face of his recorded answers, clearly indicated that he
would require the services of a legal representative at a later
stage. The reasons for the accused to waive his right to consult with
a legal representative before making the statement are unknown. I
therefore conclude, on the evidence before me that the
confession/statement and the pointing out was made freely and
voluntarily. I further conclude that the accused was adequately
informed, not only that he has a right to legal representation which
include his right to legal aid, but also that he has a right to
consult a legal representative before the pointing out and the right
to obtain legal representation before making the statement/confession
to the magistrate when he opted to proceed without a legal
representative.
[33]
The ruling on admissibility is interlocutory and maybe reviewed at
the end of trial. I however need to specifically point out that I
would revisit the issue of the admissibility of the pointing and the
confession at the end of the trial insofar as it may have formed an
integral part of the warning statement which has been ruled
inadmissible.
[34]
Mr Hengari cross-examined the magistrate extensively on the manner in
which the content of the statement/confession was recorded. This is a
dispute of fact i.e whether the accused made the statement/confession
which the State wishes to tender into evidence, which dispute I shall
adjudicate in the main trial.
[35]
In the result the following ruling is made:
The oral admissions made by
the accused to Inspector Hosea Ndjarya Shinane and his warning
statement are declared inadmissible as evidence against him in the
main trial.
The evidence of the pointing
out done by accused and the confession/admission made by the accused
to the magistrate is declared admissible as evidence against him in
the main trial.
___________________
Tommasi
J
S v Liseli (CC 13/2010) [2012] NAHC 244 (24 September 2012);