Challenge to admissibility of statements made by accused (Zimbabwe)

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Contents

Grounds for challenge

The defence lawyer can challenge any statement or indication made to the police by his or her client on the basis that the statement was not made freely and voluntarily.

Statements

The same rules as to admissibility apply to all statements made by the accused, whether oral or in writing, whether constituting a confession or not, and whether inculpatory or exculpatory (or partly one or the other). These rules also apply to indications made to the police.

If X challenges the statement on the basis that the statements were extracted by duress or the indications were made as a result of duress, the presiding judicial officer must hold a trial within a trial to determine whether the statements were freely and voluntarily made and whether the statements or indications are admissible.

In terms of s 256 CPEA a statement made by X to the police, or to a person in authority over him such as an employer, is not admissible unless it was made "freely and voluntarily without his having been unduly influenced thereto." Statements are thus not admissible if they have been extracted by the use of force or by offering incentives such a release from custody. The reason why such evidence is not admissible is that a statement made in these circumstances will be unreliable.

A statement will be inadmissible on the grounds that it was not made freely, voluntarily and without undue influence where X made the statement because

  • he was tortured, beaten up or physically maltreated in some other way such as by being deprived of sleep or food and drink for long periods or by being kept in the dark in solitary confinement for long periods; or
  • he was threatened with death or with torture or physical brutality unless he made the statement; or
  • he was told that dire consequences would befall members of his family unless he made the statement; or
  • he was offered some benefit or advantage if he confessed to the crime, such as that he would be released from custody or that he would receive only a light sentence such as a fine; or
  • he had been kept in solitary confinement for a long time and no one had been allowed to visit him and he could not bear this isolation any longer; or
  • he had been denied access to his lawyer after requesting such access and had been pressured into making a statement in the absence of his lawyer; or
  • he had been subjected to such intensive, hostile and prolonged questioning that his freedom of volition had been overborne as a result of the psychological pressure applied to him;

See Ananias 1963 R & N 938 (SR); Hlupe 1964 RLR 333 (GD); Murandiwa 1951 R & N 271 (SR); Michael & Anor 1962 R & N 374 (H); Dube 1965 RLR 177 (RA); Hackwell 1965 RLR 1 (RA); Edward 1966 (2) SA 359 (R); Mfungelwa 1967 RLR 308; Schaube-Kuffler 1969 (1) RLR 78 (A); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S); Mthombeni S-80-90; Nkomo & Ors 1989 (3) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).

In any case where a client has allegedly been subjected to physical abuse leading to the extraction of prejudicial information, the legal practitioner should request the trial court to hold an exhaustive inquiry into the allegations. In Makawa & Anor 1991 (1) ZLR 142 (S), it was held that although allegations of police mistreatment are commonly made and are often found to be spurious, the frequency with which they are made justifies that a thorough investigation be made. When an accused person stands in jeopardy of a criminal conviction if a confession made as a result of mistreatment is accepted, it is incumbent on the judicial officer to investigate to the fullest extent the veracity of the allegations.

In the case of Woods 1993 (2) ZLR 258 (S) the Supreme Court commented upon the effect of refusal of the police to allow access by prisoners to their lawyers. It said that the court cannot condone a blatant refusal of access to their lawyers of prisoners held in police custody. Such refusal violates the fundamental right granted by s 13(3) of the Constitution and brings the administration of justice into disrepute. Where there has been a wilful and flagrant denial of access, this will warrant the exclusion of evidence in any extra-curial statement or indication made prior to the allowing of access to the lawyers.

On the other hand, confrontation by the police does not amount to duress Confrontation is a permissible element of police interrogation procedures, provided it is not improper or persistent. It is not improper to tell a suspect that his co-accused has confessed where that indeed has happened, nor is it improper for the police to tell the suspect that they know about an incident connected with the alleged crime. See Nkomo & Anor 1993 (2) ZLR 131 (S)

Indications

As regards indications made by X to the police in Ndlovu 1988 (2) ZLR 465 (S) the court commented upon the provision now contained in s 258(2) CPEA. This section renders admissible anything that was pointed out by the accused or any fact discovered in consequence of information given by the accused, even if the pointing out or information forms part of a confession or statement that is not admissible. The section does not, however, render admissible the statements or remarks made by the accused while he or she is pointing out the object or scene in question, nor does it cover statements he may make on the way to the scene. If the police wish to give evidence about what the accused said in these circumstances, he must be given the usual opportunity to say whether or not he made the statements freely and voluntarily and without undue influence. If he puts the matter in issue, and if the statements have not been confirmed, there must be a "trial within a trial".

In Mazono & Anor 2000 (1) ZLR 347 (H) the accused stated at their trial that indications made by them to the police were made under duress. The magistrates admitted these statements and concluded that they had been made voluntarily without holding a trial within a trial. The High Court decided that the magistrate had been wrong in admitting these indications. Where there is a dispute as to whether a statement by an accused person was made freely and voluntarily a separate issue or trial within a trial must be held before such a statement can be admitted in evidence.

See also David HH-204-94.

However, any evidence, such as the murder weapon, discovered as a result of his indication or of information given by X is still admissible even if X did not make the indications freely and voluntarily: Nkomo 1989 (3) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).

Procedure when statements or indications challenged

If the accused testifies that the indications made by him to the police were made under duress, the court must hold a trial within a trial

In Ndlovu 1988 (2) ZLR 465 (S) the court commented upon the provision now contained in s 258(2) CPEA. This section renders admissible anything that was pointed out by the accused or any fact discovered in consequence of information given by the accused, even if the pointing out or information forms part of a confession or statement that is not admissible. The section does not, however, render admissible the statements or remarks made by the accused while he or she is pointing out the object or scene in question, nor does it cover statements he may make on the way to the scene. If the police wish to give evidence about what the accused said in these circumstances, he must be given the usual opportunity to say whether or not he made the statements freely and voluntarily and without undue influence. If he puts the matter in issue, and if the statements have not been confirmed, there must be a "trial within a trial".

In Mazono & Anor 2000 (1) ZLR 347 (H) the accused stated at their trial that indications made by them to the police were made under duress. The magistrates admitted these statements and decided that they had been made voluntarily without holding a trial within a trial. The High Court decided that the magistrate had been wrong in admitting these statements. Where there is a dispute as to whether a statement by an accused person was made freely and voluntarily a separate issue or trial within a trial must be held before such a statement can be admitted in evidence.

See also S v David HH-204-94

Onus of proof when challenged

Different rules apply depending upon whether or not the statement under challenge had previously been confirmed before a magistrate.

Confirmed statement

Where a statement of X has been properly confirmed in terms of s 113 CPEA, the onus is on X under s 256(2) CPEA to prove on a balance of probabilities that the statement was not made by him or that it was not made freely and voluntarily and without undue influence. It is not necessary for the court to believe his story beyond any doubt; if the court comes to the conclusion despite certain reservations, that X is telling the truth, then he has discharged the onus: Ndlovu 1983 (4) SA 507 (ZS); Mthombeni S-80-90.

Unconfirmed statement

Where the statement has not been confirmed in terms of s 113, the onus rests on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily and without undue influence. The reasons why the statement was not confirmed must obviously be probed by the court.

In Chatanga HH-19-90 X alleged that he was forced to make the unconfirmed warned and cautioned statement. Without dealing with that challenge by holding a trial within a trial, the policeman who recorded the statement was called and he produced the statement as if it had not been challenged. The review court said that the magistrate should have determined whether the statement was admissible by holding a trial within a trial.

Summary

A confirmed statement may be introduced in evidence on mere production. If the defence challenges such a statement the onus is on it to prove on a balance of probabilities that X did not make it or did not make it freely and voluntarily.

If the defence challenges an unconfirmed statement the statement may not be produced until its admissibility has been determined at a trial within a trial. The onus is on the State to prove that, despite X's protestations to the contrary, it was made by X and was made freely and voluntarily.


See Zimbabwe Criminal Defense Manual