Criminal
Trial
MUSAKWA
J:
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
8.30a.m. 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 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 2p.m. on 8 April 2013. However, he was
interrogated until 9p.m. 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 2p.m. However, he had also stated
that they started 'interviewing' the accused around 10.30a.m.
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 5p.m. 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 11a.m.
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 exh 5.
In
between he demanded the presence of his lawyer.
He
was told that if he cooperated 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 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
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) 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) 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”.
Mr
Masamha
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 9th
April 2013 and the indications recorded on video on 11 April 2013.
The
submission by Mr Masamha
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 supra
McNally JA distinguished between other irregularities tainting
indications and indications (pointing out) induced by torture when he
said at p131:
“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 on to 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.”
Mr
Masamha
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 (as he then was).
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, at p349 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,
at p350 -
“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 Mr Masamha'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.
Mr
Mpofu
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.
Mr
Mpofu
made
reference to S
v Nkomo
supra; 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 supra
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 supra.
Mr
Masamha
conceded this point.
Again
in
S
v Masera and Ors supra
at
p39 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.
Mr
Masamha
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.
Mr
Masamha
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, Mr Masamha
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 Mr
Masamha
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 Mr Mpofu
and
finds support in
S
v Dhliwayo and Anor supra.
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 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.
National
Prosecuting Authority,
legal practitioners for the State
Mubangwa
& Partners,
accused's legal practitioners
