Criminal
- Trial Within a Trial
MAWADZE
J:
The
accused who resides in Village 25, Chief Sengwe, Chiredzi is facing
two counts.
In
count 1 the accused is facing the charge of murder as defined in
section 47(1) of the Criminal Law (Codification and Reform) Act [Cap
9:23]
in that on 18 June 2015 at Gonowani Village, Headman Mpapa, Chiredzi
the accused stabbed the now deceased Stephen Chikucha with an unknown
sharp object in the chest causing his death.
In
count 2 which relates to attempted murder defined in section 189 as
read with section 47(1) of the Criminal Law (Codification and Reform)
Act, [Cap
9:23]
it is said that on 29 June 2015 at Murengwami Village, Headman Mpapa,
Chief Sengwe, Chiredzi the accused attempted to kill Onias
Chibhombise by stabbing him with an okapi knife in the neck.
The
accused totally denies the charges in both counts. In fact the
accused said he was unknown to both the now deceased in count 1 and
the complainant in count 2. The accused said he does not even know
the alleged crime scenes in both counts.
As
regards count 2 of attempted murder the accused said at the time the
alleged offence was committed he was at his residence with his
parents and nowhere near the crime scene.
During
the State case the prosecutor led evidence from Beauty Aleck in count
1, Onias Chimbombise complainant in count 2, Amos Chinherera in both
counts 1 and 2.
The
evidence of John Makondo, Dr Tungamira Isaac Rukatya and Dr
Mutengerere was admitted in terms of section 314 of the Criminal
Procedure and Evidence, Act [Cap
9:07].
It
was during the evidence of D/Assistant Inspector Victor Chinoni
(D/Assistant Inspector Chinoni) that Ms
Mutumhe
for the State sought to produce the accused's unconfirmed warned
and cautioned statement and Ms
Bwanya
for the accused objected.
The
basis of Ms
Bwanya's
objection was that the said unconfirmed warned and cautioned
statement was inadmissible on the basis that it was improperly
obtained.
Ms
Mutumhe
submitted that she intended to rely on this statement in the
prosecution case and proceeded to apply to conduct a trial within a
trial.
This
judgment therefore solely concerns itself with a trial within a trial
in order to determine the admissibility of the unconfirmed warned and
cautioned statement made by the accused. This statement in issue was
made during video recording. In order to determine its admissibility
the court had to watch, in camera, the recorded video. The written
statement was not obviously produced at this stage. Further, in view
of the nature of the State case I decided to watch the video
recording and make a determination in the absence of the learned
assessors Messrs Mrs Chademana and Mr Mushuku.
During
the trial within a trial the State led evidence from D/Assistant
Inspector Victor Chinoni (D/Assistant Inspector Chinoni) who recorded
the statement in issue, D/Sgt Thulisani Moyo who witnessed the
recording of the warned and cautioned statement and D/Cst Benard
Chimbeke who operated the video camera.
The
accused gave evidence.
Before
dealing with the evidence led during the trial within a trial I shall
briefly discuss the law in relation to unconfirmed extra curial
statements and their admissibility.
THE
LAW
The
rights of an arrested and detained person are provided for inter alia
in section 50; section 52(a) and section 70(3) of our Constitution.
In
brief section 50 of the Constitution provides for the rights of an
arrested and detained person; section 52(2)(a) protects any person
from all forms of violence whether from public or private sources. In
terms of section 53 of the Constitution no person shall be subjected
to physical or psychological torture, or to cruel or, inhuman or
degrading treatment of punishment. Section 70 deals with the rights
of any person accused of any offence and specifically section 70(3)
provides as follows:
“(3) 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 interests.”
Section
50(1)(c) of the Constitution requires that an accused person be
treated humanely and with respect for their inherent dignity. In
terms of section 50(4)(c) an accused person has a right not to be
compelled to make a confession or an admission.
All
these are fundamental rights this court is enjoined to protect during
criminal proceedings and as provided in section 86(3) of the
Constitution. Some of these rights are non-derogatory rights and may
not be limited or violated.
Section
256 of the Criminal Procedure and Evidence Act [Cap
9:07]
deals with the admissibility of confessions or statements made by an
accused person.
It
is important to note that this relates to either written, oral, tape,
video recorded or statements made in other forms. See S
v Nkomo & Anor
1989 (3) ZLR 124F–125A.
The
essential requirements of admissibility of such an accused's
statement or confession is that it should have been made freely and
voluntarily without the accused being unduly influenced thereto.
It
is beyond the scope of this judgment to discuss what is undue
influence. I shall therefore limit myself to what the accused alleges
was done to him to compel him, to give the warned and cautioned
statement in issue.
Suffice
to mention that generally undue influence entails anything repugnant
to fairness and the fundamental principles upon which our criminal
justice system is based. These include inter
alia,
improper manner of questioning or interrogation which may be
aggressive and unduly lengthy; unnecessary confrontation meant to
bring pressure to bear upon an accused person; physical maltreatment
or violations visited upon an accused person, or such threats;
inducements like promised release from custody, special treatment,
privileges or offers of reward or leniency; and denial of rights like
access to legal representation or presence of a guardian where
juveniles are involved.
Indeed
the list is endless, and each case depends on its own facts.
It
is trite that the onus is on the State to prove beyond reasonable
doubt that the statement an accused person alleges was improperly
made is admissible: see R
v Jacobs
1954
(2) SA 320 (A).
Lastly,
I would hasten to point out that the nature of the statement, (that
is whether confirmed or unconfirmed) and the nature of an accused
person's challenge determines whether a trial within a trial is
necessary.
It
should be borne in mind that a trial within a trial is held to
establish a question of law, the admissibility of the challenged
statement, and not a question of fact like whether an accused person
made statement or not. The latter is a factual issue which can be
resolved by leading evidence in the main trial to establish whether
the accused made the statement or not: see S
v Shezi
1994 (1) SACR 575.
I
now proceed to apply these principles in this case.
THE
ACCUSED'S EVIDENCE
The
unconfirmed extra curial statement the State seeks to rely upon is a
written statement which the accused made during a video recording.
The nature of the accused's challenge is that it was not made
freely and voluntarily hence it is inadmissible.
It
is common cause that an attempt was made by the police to have this
statement confirmed at Chiredzi Magistrates Court and that it was not
confirmed as a result of the accused's objections. What is critical
to note however it that at the Magistrates Court the nature of the
accused's objection or complainant in relation to this statement
was that he had simply been “intimidated”.
In
his defence outline made during a trial within a trial the accused
said he only made the statement after being physically violated or
assaulted. He said threats of further assault were made if he did not
accede to the police's demands to admit to the charges. The accused
in that defence outline went on to narrate the sequence of events.
(i)
Firstly, the accused said he was assaulted by D/Assistant Inspector
Chinoni and D/Sergeant Moyo on 2 July, 2015 at Chikombedzi Police
Station before being taken for indications.
(ii)
Secondly, the accused said the police details forced him to admit to
the charges telling him that he had committed these offences for
ritual purposes based on some alleged superstitious belief. The
accused said he was forced to admit that he committed the offences in
counts 1 and 2 in order to extract human blood from the victims under
the superstitious belief that such human blood would heal his back
pains.
(iii)
Thirdly, he said at the alleged crime scenes in count 1 and count 2
he was further assaulted.
(iv)
Fourth, the accused said in the morning when his statement was later
recorded at ZRP Chiredzi, D/Assistant Inspector Chinoni and D/Sgt
Moyo handcuffed him. Thereafter he was forced to place his hands
between his legs. A log was then put behind his elbows which log was
suspended on two desks. While in that painful position the accused
said the two police details assaulted him under the feet and on his
buttocks. He said the assault continued until due to pain he admitted
to the charges in both counts. The accused said that it was after
this brutal assault which culminated in his admission and that the
statement in issue was then video recorded.
I
understand from this defence outline that the accused's contention
is that this statement is inadmissible as it was improperly obtained
contrary to the provisions of section 256 of the Criminal Procedure
and Evidence Act [Cap
9:07].
Further,
the accused is alleging that his constitutional rights were violated
as he was compelled to make a confession or admission contrary to the
provisions of section 50(4)(c) of the Constitution.
Lastly,
the accused is alleging that this statement is improperly obtained
evidence contrary to the provisions of section 70(3) of the
Constitution and that its admission would render this whole trial
unfair and not in the interests of the proper administration of
justice.
When
the accused took the witness stand his version was as follows:
He
said after being detained at ZRP Chikombedzi he first met the four
CID details from Chiredzi on 30 June 2015 when they took him from the
cells and interrogated him about the two counts which he denied.
Thereafter he said an identification parade relation to count 2 was
conducted. He said his woes started soon after this identification
parade. The accused said the CID details said that he, the accused,
was wasting time denying the offences when in fact he had been
identified during the identification parade.
The
accused said he was then physically violated as follows;
(a)
At ZRP Chikombedzi he said D/Assistant Inspector Chinoni and D/Sgt
Moyo hit him about twenty times under the feet after which they drove
him to Chiredzi police station.
(b)
The next morning at ZRP Chiredzi he was taken from the police cells
and questioned about the two offences which he denied. He was again
hit under the feet by D/Assistant Inspector Chinoni and detained.
Later that day he was taken for indications.
(c)
During indications at the alleged crime scenes he said D/Assistant
Inspector Chinoni pulled out a firearm threatening to shoot him if he
persisted in denying the offences and had to be restrained by
D/Sergeant Moyo. At the alleged crime scenes both D/Assistant
Inspector Chinoni and D/Sergeant Moyo narrated to him how the
offences in both counts were committed after which he was forced to
recite that account as he was video recorded. Thereafter he was taken
to his home in order to recover the knife used in the alleged
commission of the offense and a brown jacket they alleged he was
wearing despite that he had no such items. They returned to ZRP
Chiredzi.
(d)
The next day at ZRP Chiredzi on 3 July, 2015 he was taken from the
police cells and again asked about the offence which he denied. He
was then handcuffed and positioned in the manner already explained in
his defence outline after which both D/Assistant Inspector Chinoni
and D/Sergeant Moyo severely assaulted him until he admitted to both
charges. Thereafter he was questioned and forced to narrate how he
allegedly committed the offences without any video recording being
made in the manner police had told him. He complied.
(e)
After such compliance the video recording of the warned and cautioned
statement played in court was then done. Accused said he simply
repeated what he police had told him to say. Thereafter he was taken
to court for confirmation proceedings.
(f)
The accused said at court he naturally disowned the statement
improperly obtained and showed the presiding Magistrate the injuries
on his swollen hands caused by the handcuffs and also revealed that
his feet were painful. The statement was not confirmed.
THE
STATE'S EVIDENCE
The
state led evidence from three CID details, D/Assistant Inspector
Chinoni who recorded the statement, D/Sergeant Moyo who witnessed the
recording of the statement and D/Cst Bernard Chimbeke who took the
video or recorded the proceedings on the video.
1.
D/Cst Benard Chimbeke (D/Cst Chimbeke)
D/Cst
Chimbeke said his task was to simply capture the proceedings of the
recording of the warned and cautioned statement on the video. He
disputed that any pressure or force as brought to bear upon the
accused. He said the accused was never intimidated, assaulted or
forced to give the statement. He was also part of the CID details who
took accused from ZRP Chikombedzi to Chiredzi a distance of about
120km. No useful questions were put to him in cross examination.
2.
D/Sgt Thulisani Moyo (D/Sgt Moyo)
D/Sgt
Moyo is the investigating officer in both counts but his role in
respect of the statement was to witness its recording in writing and
on video. He said after accused's rights were explained the accused
whom he described as very co-operative elected to give a statement.
He too denied that the accused was intimidated, forced, assaulted or
threatened to give the statement. D/Sgt Moyo dismissed accused's
allegations of impropriety as false.
Under
cross-examination D/Sgt Moyo said he only later learnt that the
accused had disowned the statement at court during confirmation
proceedings alleging what accused called “police intimidation”.
He said they could not record accused's warned and cautioned
statement at ZRP Chikombedzi where they went to collect the accused
as they had no video camera. He said the accused at ZRP Chikombedzi
initially denied the charges but changed his version later at ZRP
Chiredzi.
3.
D/Ass Insp Victor Chinoni (D/Ass Insp Chinoni)
D/Ass
Insp Chinoni is the detail who recorded the accused's statement and
is implicated by the accused.
D/Ass
Insp Chinoni said he is part of CID details who took accused from ZRP
Chikombedzi to ZRP Chiredzi. At Chiredzi both D/Sgt Moyo and D/Cst
Chimbeke witnessed the recording of the warned and cautioned
statement. He said he properly warned accused of his rights and
accused gave his statement freely and voluntarily. Thereafter the
accused read the statement and signed it. He disputed that the
accused was coerced, forced or assaulted.
Under
cross examination D/Ass Insp Chinoni explained that three are to
discs, one for the recording of warned and cautioned statement and
the other for indications which indications were not part of the
trial within a trial. He said he is not part of the police details
who took accused to court for confirmation proceedings.
D/Ass
Insp Chinoni said after accused disowned the warned and cautioned
statement at court alleging intimidation, he had to play the video
recording to the Officer in Charge CID to show how he recorded the
statement which was typed electronically and video recorded.
I
noted that D/Ass Insp Chinoni was a very impressive witness. Besides
being an eloquent speaker, his attention to detail and knowledge of
his work is excellent. The professionalism he exhibited in recording
the warned and cautioned statement as seen on the video is
commendable.
Indeed
Ms
Bwanya
understandably found it difficult to cross examine him, let alone to
make any in roads into his evidence.
On
the other hand the accused impressed me also as a soft, smooth and
eloquent speaker. His unassuming demeanour may be misleading. Be that
as it may this matter cannot be determined on eloquence alone.
ANALYSIS
OF EVIDENCE AND FINDINGS MADE
I
had the opportunity to view the video recording of the warned and
cautioned statement. I did note that throughout the recording the
accused was allowed to tell his story, presumably in his own words
without any interruptions: see R
v Shaube-Kuffler
1969 RLR 78 (A).
The
accused's narration of events is detailed and lengthy.
In
the circumstances it is highly improbable that all that detail were
words put in accused's mouth which he memorised. It is precisely
for this reason that I had to watch the video recording of the
statement. I had a keen interest to observe if there were any signs
that the statement was improperly obtained or not made freely and
voluntarily. At this stage I was not worried much about the contents
of the statements per
se
but to assess the accused's demeanour.
I
however noted that the statement is detailed.
While
the statement is incriminatory it is also exculpatory in that the
accused emphasised that he had no intention to kill any of the
victims.
Turning
to the video recording I noted the following:
(1)
The accused's rights were well explained and the accused listened
attentively. The accused who then elected to give the statement was
allowed to given an uninterrupted account and D/Ass Insp Chinoni only
sought clarifications after the accused finished his explanation. As
already said the statement is quite lengthy.
(2)
The accused gave a coherent, free flowing account in Shona.
(3)
Before even giving the statement the accused sought clarification
from D/Ass Insp Chinoni on where to start and he was allowed to start
from wherever he believed was relevant.
(4)
As the accused gave the statement he was seated on a chair. Despite
that his hands were handcuffed the accused was gesturing using hands
to emphasize whatever he was explaining. He commenced his account
from the time he said he was in South Africa in order to give
background information for his alleged conduct.
(5)
The accused articulated the dates, time, manner and how he met the
alleged victims.
(6)
As the accused gave the statement he did not exhibit any signs of
discomfort and was not fidgeting but seemed alive as to the serious
nature of the proceedings.
(7)
D/Ass Insp Chinoni only sought details or clarifications arising from
the accused's own explanation, for example if accused knew the
deceased or complainant before, or the description of the knife
allegedly used and its owner.
(8)
After the statement had been typed/recorded the accused was given the
statement to read it himself. I noted that the accused took his time
reading the statement to himself as shown by the movement of his
lips. He held the statement with both hands. The concentration
exerted in reading the statement by the accused was evident as he
moved from one page to the other.(9) After confirming the correctness
of the statement the accused was asked to sign and he inquired why he
should sign after which D/Ass Insp Chinoni explained the purpose of
signing and thereafter he signed.
(10)
The video ends with accused proceeding to make indications which are
not subject of this hearing. However I observed that accused at the
alleged scenes of crime walked without any difficulty.
A
proper analysis of accused's evidence shows that the accused was
not consistent in his outline of version of events.
The
alleged assault twenty times under the feet, the threats made with a
firearm and the alleged rehearsal of events were all not part of
accused's defence outline.
Further
all these issues accused later said in his evidence were not put to
D/Ass Insp Chinoni or D/Sgt Moyo in cross examination.
It
is difficult in the circumstances to accept that this statement was
foistered on the accused.
As the accused explained the gestures he made were his own. The
accused admitted that the questions he asked were also his own meant
to safeguard his rights.
The
alleged gaps in the video referred to by Ms Bwanya are difficult to
appreciate in light of the explanation by D/Ass Insp Chinoni and that
accused's alleged indications are not before the court.
After
a careful analysis of the evidence I find nothing to suggest that the
accused was swayed by any external impulses or that any form of
pressure was improperly brought to bear upon him to cause him to give
the warned and cautioned statement. There is nothing to negative his
freedom of volition.
This
explains why even before the Magistrate who declined to confirm the
statement the accused only alleged “intimidation” not the
physical violence he now outlined in an inconsistent manner before
this court.
If
accused had been assaulted as he alleges he would have said so to the
Magistrate.
I
am not persuaded by accused's evidence that the very Magistrate who
declined to confirm his statement would fail to properly record the
alleged impropriety accused alleged to him or her let alone to fail
to note the injuries the accused exhibited to the Magistrate. It is
incredible to suggest that the Magistrate ignored all that as accused
now alleged.
I
am satisfied that the State has discharged the evidential onus thrust
upon it as regards the admissibility of the accused's unconfirmed
warned and cautioned statement. It has been proved beyond reasonable
doubt that the accused made the statement freely and voluntarily
without being improperly influenced thereto.
After
making this finding I have no discretion to exclude accused's
warned and cautioned statement.
In
the result, it is my finding that the accused's unconfirmed warned
and cautioned statement is admissible.
Accordingly,
the accused's warned and cautioned statement is admitted as Exhibit
5 which includes both the written statement and the accompanying
video recording of that statement.
National
Prosecuting Authority,
counsel for the State
Chihambakwe
Law Chambers, pro deo
counsel for the accused
