Court Management re: Postponement of Proceedings iro Trial Within a Trial and the Exercise of Summary Jurisdiction

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Illegally or Unlawfully Obtained or Tainted Evidence, Inadmissible Evidence and the Exclusionary Rule

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Digital Evidence

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Direct, Concrete and Circumstantial Evidence, Key or Eye Witness, Inferential Reasoning, Evidence Aliunde and Res Gestae

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Findings of Fact re: Assessment of Evidence and Inferences iro Approach, Facta Probantia and Facta Probanda

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Subpoena Ad Testificandum or Witness Summons re: Competent Witness iro Officers of the Court & Judicial Support Staff

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Corroborative Evidence re: Admissions, Unchallenged Evidence and the Right of Cross-Examination or Replication

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Constitutional Rights re: Arrest, Detention, Prosecution, Fair Trial Rights, Liberty Rights & Habeas Corpus Proceedings

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Constitutional Rights re: Arrest, Detention and Security iro Constitutional Obligations of Security Forces & Personnel

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Constitutional Rights re: Legal Representation

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Constitutional Rights re: Liberty, Torture, Inhuman and Degrading Treatment or Punishment & Principle of Human Dignity

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice.

The court could have been lulled by the prosecutor's undertaking to have the complaints investigated.

That became the end of the matter.

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice.

The court could have been lulled by the prosecutor's undertaking to have the complaints investigated.

That became the end of the matter.

Pleadings re: Admissions or Undisputed Facts iro Confessionaries, Confession and Avoidance & Concession and Avoidance

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC)....,.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

Final Orders re: Composition of Bench iro Judicial Precedents, Effect of Ex Post Facto Statutes and Judicial Lag

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC)....,.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach

The accused pleaded not guilty to a charge of murder. The incident took place in 2012.

During the course of the trial, the State sought to produce extra-curial statements recorded from the accused. The defence challenged the admissibility of the statements.

A trial on the separate issue ensued and this is the court's ruling on the matter.

The police officers involved in the investigations of this matter (especially in the recording of the extra curial statements) ought to have attended the handing down of this ruling. This would have enabled them to appreciate aspects relating to the rights of accused persons, lest they are not aware of those rights or have forgotten.

In the alternative, they should get a copy of this judgment.

In outlining the challenge, the accused stated, that, the statements were recorded under duress. He was denied access to legal representation. He was tortured and excessively interrogated. He was denied food and water. He was not allowed to relieve himself. The video recording of indications is not continuous. A crow bar purported to have been recovered on his indications was planted at the scene in advance. A warned and cautioned statement that is said to have been recorded from the accused was signed after the indications.

In seeking to prove its case, the State led evidence from four police officers.

It is common cause, that, the accused went to Homicide offices on 8 April 2013 in the company of his then legal practitioner, Mr Ngwerume, at 8:30am. He was thereafter detained and interrogated.

It is common cause, that, the accused was taken to court on 11 April 2013. Complaints were made to the court about ill-treatment at the hands of police officers. The State undertook to investigate the complaints but nothing was presented to court.

No attempt was made to have the warned and cautioned statement confirmed.

From the evidence led by the State, the accused confessed to the allegations around 2pm on 8 April 2013. However, he was interrogated until 9pm on that day. He was not denied food. In fact, his wife was allowed to bring him food. As a result of the confession, they took the accused to his residence on the 9th. There, the accused picked up an iron bar which was near the cottage and indicated that it was the weapon with which he had struck the deceased.

Detective Assistant Inspector Mhasvi testified, that, interrogation of the accused commenced after lunch at 2pm. However, he had also stated that they started 'interviewing' the accused around 10:30am. During lunch, he said, they were with the accused.

It was not clear what they were doing at that stage.

Concerning the accused's legal practitioner, he stated, that, on 8 April, after introductions, Mr Ngwerume was taken to office number 27. Thereafter, they did not see Mr Ngwerume.

Instructions were given to them, by the Officer-In-Charge, to question the accused person.

They questioned the accused whilst in office number 19 (Assistant Inspector Mhasvi's office). By 5pm they had a confession from the accused.

It is from this confession that they learnt of the use of an iron bar.

The accused was warned before they took him to his residence to recover the iron bar. This was now on 9 April 2013.

As to why they did not advise Mr Ngwerume, he stated, that, they did not deem it necessary to advise the accused of his right to consult Mr Ngwerume. This is because they had limited time.

After these indications, they went back to Harare Central Police Station where a warned and cautioned statement was recorded from the accused person. The accused person wrote the statement on his own accord.

They did not see Mr Ngwerume until the 11th. Attempts to contact Mr Ngwerume had been fruitless.

On the 11th, Mr Ngwerume attended, and the accused challenged the statement that had been recorded from him. Mr Ngwerume suggested that another statement be recorded.

Detective Assistant Inspector Mkandla told the court that he participated in the questioning of the accused and subsequently witnessed the recording of the warned and cautioned statement.

Two teams alternated in interrogating the accused person.

According to him, the accused changed his mind and dispensed with his lawyer and thus the statement was recorded. The lawyer had been in constant contact with the Officer In Charge and other members of the team.

The indications recorded from the accused person were done on 11 April by a team led by Detective Assistant Inspector Dube.

Again, Mr Ngwerumwe was not in attendance.

According to Detective Assistant Inspector Dube, the accused did not request for the presence of his lawyer. In any event, he was not aware of who the lawyer was.

He denied ill-treating or threatening the accused person to make the indications.

He referred to the video of indications.

As previously noted by this court, the video runs for 28 minutes and 34 seconds. The signed indications noted, that, they commenced from 11am and ended at 11:50. That gives a deficit of 22 minutes.

Detective Assistant Inspector Dube could not account for that, other than to shift the explanation to the recording detail, Detective Constable Mwakanheni.

From Detective Constable Mwakanheni, the court heard, that, on the day of indications, he was told, on short notice, that he had to 'capture' indications, to use his parlance. He had no time to prepare, hence the camera battery was not fully charged. Because of the short notice, he commenced his recording in the office when the accused was being cautioned. He had to use his discretion concerning what to record in order to conserve the battery. According to him, he would switch off when the accused was not indicating anything relevant. But, during those unrecorded moments, the accused would be discussing with the members of the team. He did not recall what was discussed.

The accused chronicled his ill-treatment at the hands of the police officers.

He denied ever voluntarily making a confession.

He claimed to have first been assaulted by Detective Assistant Inspector Mkandla on the day of his arrest. This happened when he was being questioned and when he denied the allegations. He also singled out Detective Assistant Inspector Mhasvi as one of the officers who assaulted him.

The accused stated, that, he was lodged in a cell whilst handcuffed. Officers would randomly enter the cell at night and assault him. He was not given food and was denied ablution facilities.

On the following day, he was taken to his residence where an iron bar was recovered. He was told he would do as instructed when indications were recorded.

Later, a statement was dictated to him. This explains the hand-written statement which is exhibit 5.

In between, he demanded the presence of his lawyer.

He was told, that, if he co-operated, everything would be fine. He was also told that at the police station an accused makes admissions which he can later challenge at court.

The accused gave a more detailed account of torture which other accused before this court have previously failed to properly account, save to refer to it as 'Bridge'.

The accused explained, that, with his hands handcuffed in front, he was made to double up such that an iron bar was placed behind the knees, with hands behind the bar by the elbows. He was then suspended between two desks. Whilst thus suspended he was assaulted under the soles, on the buttocks, and on the face.

On 10 April, he was taken for indications.

He was told to do as instructed previously. He was made to simulate signing the caution when recording of the video commenced. However, the truth was that the signing had already been made under duress off camera. He had difficulties walking down the steps and had to hold to the balustrade for support. This is because he had been assaulted on the soles. The main weapon used was a baton.

As the indications were done, the video camera would be switched off intermittently. During such breaks, he would be reminded to do as previously instructed. At the end of indications, at the corner of Mazowe Street and Herbert Chitepo Avenue, he did sign - but after raising complaints.

Let me sum up facts that are not in dispute:

(i) The accused voluntarily handed himself to the police in the company of his then legal practitioner.

(ii) He was detained beyond forty-eight hours.

(iii) The first warned and cautioned statement, and the indications, were recorded in the absence of the accused's legal practitioner.

(iv) The accused's legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013.

(v) The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013.

(vi) Mr Ngwerume, who represented the accused, submitted, that, he was denied access to him until the 11th of April.

(vii) The State undertook to investigate the complaints but there has been no feedback.

Chapter 4 of the Constitution of Zimbabwe Amendment came into operation on 15 February 2013 which was the date of publication. This means, that, when the accused was arrested, on 8 April, the rights enshrined in the Constitution were already in operation and had to be observed.

Chapter 4 relates to the declaration of rights.

Section 50(1) of the Constitution provides that a person who has been arrested:

“(b) Must be permitted, without delay —

(i) At the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and

(ii) At their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice; and must be informed of this right promptly;

(c) Must be treated humanely and with respect for their inherent dignity;”

And further, subsections (2) and (3) of section 50 provide that:

“(2) Any person who is arrested or detained —

(a) For the purpose of bringing him or her before a court; or

(b) For an alleged offence; and who is not released, must be brought before a court as soon as possible, and, in any event, not later than forty eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.”

Then subsections (4) and (5) of section 50 provide that:

“(4) Any person who is arrested or detained for an alleged offence has the right —

(a) To remain silent;

(b) To be informed promptly —

(i) Of their right to remain silent; and

(ii) Of the consequences of remaining silent and of not remaining silent;

(c) Not to be compelled to make any confession or admission; and

(d) At the first court appearance after being arrested, to be charged, or to be informed of the reason why their detention should continue or to be released.

(5) Any person who is detained, including a sentenced prisoner, has the right —

(a) To be informed, promptly, of the reason for their being detained;

(b) At their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;

(c) To communicate with, and be visited by —

(i) A spouse or partner;

(ii) A relative;

(iii) Their chosen religious counsellor;

(iv) Their chosen legal practitioner;

(v) Their chosen medical practitioner; and

(vi) Subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of their choice;

(d) To conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment; and

(e) To challenge the lawfulness of their detention in person before a court, and, if the detention is unlawful, to be released promptly.”

As regards the consequences of violation of an accused person's rights, section 70(3) of the Constitution provides that -

“In any criminal trial, evidence that has been obtained in a manner that violates any provision of this Chapter must be excluded if the admission of the evidence would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.”

Counsel for the State submitted, that, what is discovered through inadmissible means is admissible and cited S v Nkomo 1989 (3) ZLR 117 (SC).

He, however, could not justify why he made that submission as that is not the issue before the court.

The issue is the admissibility of the warned and cautioned statement dated 9 April 2013 and the indications recorded on video on 11 April 2013.

The submission by counsel for the State, concerning what is discovered through inadmissible means, may not be in tandem with section 70(3) of the Constitution.

In any event, in S v Nkomo 1989 (3) ZLR 117 (SC), McNALLY JA distinguished between other irregularities tainting indications and indications (pointing out) induced by torture when he said…,:

“Section 3 of our Constitution provides explicitly that 'if any other law is inconsistent with this Constitution that other law, shall, to the extent of the inconsistency, be void.'

It does not seem to me, that, one can condemn torture while making use of the mute confession resulting from that torture, because, the effect is to encourage torture. I conclude, therefore, that, section 243(2) of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture, in relation to the pointing out, is raised and not satisfactorily rebutted.

I see no reason to shift the onus onto the accused, as in the case of confirmed confessions.

I must make it clear, that, I distinguish torture from other irregularities attendant upon an indication. This judgment deals only with indications allegedly induced by torture.

I must also make it clear, that, I am dealing only with the 'mute confession' aspect of indications. I am not dealing with the admissibility of evidence that something external to the accused (eg the murder weapon, the body of the deceased, the stolen money) was discovered as a result of his indication or of information given by him.”

Counsel for the State also submitted, that, the accused was properly cautioned before indications and he did not object. Therefore, the requirement of admissibility was met. He cited S v Mazano and Anor 2000 (1) ZLR 347 (HC).

This was a review matter by GARWE J…,.

In that case, it was noted, that, evidence had been led concerning indications made by the accused person. The trial court held, that, the indications were admissible without having conducted a trial within a trial. With reference to section 256 of the Criminal Procedure and Evidence Act, the learned Judge…, remarked that:

“It is clear from the language used in the section, which is clear and allows of no ambiguity, that, any statement made by an accused person, verbal or written, cannot be admitted in evidence unless it is first proved that the statement was made freely and voluntarily. This has been stressed in a number of decided cases within this jurisdiction.”

Concerning statements accompanying indications, the learned Judge further said…,:

“It is necessary to stress, that, any indications made by an accused person during which he explains what he knows about the offence or during which he points at certain objects is a 'statement' for purposes of section 256 of the Criminal Procedure and Evidence Act. All statements made by the accused, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other), are subject to the same rules as to their admissibility.

A police officer may not give evidence of any such statements unless he first satisfies the rules on admissibility: Criminal Procedure in Zimbabwe by JOHN REID-ROWLAND at p20-2.

As the learned author further points out:

'…,. If the indication was, in effect, a mute statement about the thing discovered, that aspect of the indication would not be admissible….,.' (at p20-14).”

Therefore, I again fail to appreciate the essence of counsel for the State's submission on the issue of cautioning the accused before the indications were conducted.

Whilst it was necessary that such a caution be administered, that, on its own, is not proof that the indications were freely and voluntarily made.

A closer look at the video footage leaves some doubt that the pen the accused used actually touched the paper. This can be contrasted with the end of the indications where one can actually see the pen touching the paper.

Counsel for the accused highlighted several factors which he submitted militated against the admissibility of the extra curial statements. These are:

(i) The detention of the accused beyond the prescribed period;

(ii) Denial of access to legal representation;

(iii) The incompleteness of the video recording;

(iv) The accused being handcuffed whilst making indications; and

(v) That the accused had been assaulted as well as being denied food and ablution facilities.

Counsel for the accused made reference to S v Nkomo 1989 (3) ZLR 117 (SC); S v Masera and Ors HH50-04; S v Jackson HB106-08; and S v Dhliwayo and Anor 1985 (2) ZLR 101.

In the lengthy judgment of S v Masera and Ors HH50-04, MUNGWIRA J held, that, the admissibility of an extra-curial statement must be proved beyond a reasonable doubt.

This was the same approach in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Counsel for the State conceded this point.

Again, in S v Masera and Ors HH50-04…, MUNGWIRA J went to state that:

“The general test, on whether there has been 'undue influence' in the recording of a statement from the accused, being as formulated in R v Ananias 1963 R & N 938 as follows:

'Was there anything in the facts of the case to suggest that the confessor's will was swayed by external impulses, improperly brought to bear upon it, and calculated to negative his freedom of volition.'

See also S v John 1970 (2) SA 232; S v Kasikosa 1971 (2) RLR 13 @ 16D-E.”

In the present matter, allegations of assault were levelled against Detective Assistant Inspectors Mhasvi and Mkandla as well as other unidentified officers. The named officers testified and denied the allegations of assaulting or ill-treating the accused.

Counsel for the State submitted, that, the accused failed to prove the assaults. In other words, his contention was, that, there was no proof of any injuries sustained.

However, one must not lose sight of the fact that complaints were made before the magistrate.

Unfortunately, the court did not order that the accused be medically examined as is the practice. The court could have been lulled by the prosecutor's undertaking to have the complaints investigated. That became the end of the matter.

Counsel for the State was also of the view that the video shows the accused person walking normally.

My own view is that although the footage does not show the accused holding onto some railing or balustrade for support, when they get into the car park, he appears to walk with some difficulty. He appears to sort of drag his left leg instead of lifting it and stepping firmly as he does with the right one.

Concerning the incompleteness of the recording, counsel for the State stuck to the explanation proffered by Detective Constable Mwakanheni.

In the first place, Detective Constable Mwakanheni did not explain why he did not inform Detective Assistant Inspector Dube that the camera battery needed charging. The process was already compromised by the fact, that, the video does not show the accused being led from the cell. It abruptly starts with the caution being administered to the accused person. Then, there is the glaring omission of a tape counter.

It must also be recalled, that, Detective Assistant Inspector Mhasvi told the court, that, when the accused confessed, on the 8th, they could not go for indications then because there was need to prepare the camera (as in charging the battery).

Then, from Detective Constable Mwakanheni, the court heard, that, he was called on short notice to do recordings on the 10th and the battery was not sufficiently charged.

If it is accepted, that, there were twenty-two minutes of the indications that were not recorded, one begins to question what was happening in between.

Even the indications at the accused's residence show him standing in one place. The footage does not show him boarding the motor vehicle. Instead, the camera focuses on the accused's garden and part of the external features of his house. Later, we see the motor vehicle now along Herbert Chitepo Avenue.

The advantage of taking photographs and videos of indications is that one can see for themselves the real situation as opposed to being told about what took place.

Police officers should take advantage of such techniques by making full recordings and not leaving certain aspects to speculation. This is because a picture is said not to lie.

However, it is another thing for a picture not to bring out everything.

More often, allegations of ill-treatment are made against police officers in the hope that they are not able to refute them. What a better opportunity to put paid to such allegations with a full recording.

Essentially, the video before this court is a travesty of justice.

The issue of over-detention is incontestable.

It was not canvassed during the trial within a trial. The best counsel for the State could have done was to concede that fact.

This was an outright violation of the Constitution.

If the accused confessed on the 8th why was he not taken to court on the following day?

It is inexcusable that police wanted to conduct formal indications. In any event, they went for the unrecorded indications on the 9th.

There is no legal provision that a court appearance should only take place after indications or after the recording of extra-curial statements.

Then, there are the curious interrogations that took place after the alleged confession.

It is not denied that the interrogations ran until 9pm on the 8th. Why would a suspect who has confessed be interrogated at all or for that long? And why would a suspect who has not tendered a confession during the presence of his lawyer turn around and confess in the lawyer's absence?

The fact that no attempt was made to have the extra curial statements confirmed is an indication requiring close scrutiny of the complaints raised by the accused.

This was a submission made by counsel for the accused and finds support in S v Dhliwayo and Anor 1985 (2) ZLR 101.

Police officers contradicted each other on what became of Mr Ngwerume.

One said he was not reachable and the other said there was constant communication.

I am mindful that Mr Ngwerume did not testify: but, before the magistrate, he complained that he was denied access to the accused until the 11th.

That was not rebutted by the State which undertook to investigate the complaints without any prompting by the court.

If there was nothing sinister going on, why would police not have ensured the presence of Mr Ngwerume during the recording of warned and cautioned statement and indications?

If Mr Ngwerume was not reachable, why did they not contact his office?

It is not like the police were doing the accused a favour. It was his right to confer with counsel.

A cumulative assessment of the factors raised by the accused person, in challenging the admissibility of the statements, raises serious doubts that they were recorded without undue influence and without the accused having been denied some fundamental rights.

Accordingly, the statements are held not to be admissible.

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HHH220-16 - THE STATE vs GEORGE LOVELL

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