Production of statements made by accused to police (Zimbabwe)

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Types of statement

All statements made by accused persons outside the court (extra-curial statements) during investigations, including written and oral statements, confessions and statements made to the police on the way to places where indications are to be made or during the course of making these indications are admissible only if these statements were made freely and voluntarily and without undue influence: s 256 CPEA.

A prosecutor commits a fundamental irregularity if he includes in his outline of the State case the contents of any statement made by the accused. A statement made by the accused to a person in authority may not be admitted unless the court is satisfied that it was made freely and voluntarily and without undue influence having been brought to bear. This applies not only to formal written statements, but to anything said by the accused, including chit-chat on the way to the scene of the crime. A police officer may not give evidence of any such statements unless he first satisfies the rules about admissibility: Nkomo 1989 (3) ZLR 117 (S).

Method of production

The method of production of X's statement depends upon whether or not the statement has previously been confirmed before a magistrate.

A statement which has been confirmed by a magistrate under s 113 CPEA must be admitted by the court into evidence on its mere production by the prosecution without any further proof under s 256(2) CPEA. If X challenges the admissibility of the statement the onus is upon him to prove its inadmissibility.

If the statement has not been confirmed before a magistrate and X challenges the admissibility of that statement, a trial within a trial must be held to determine the admissibility of the statement. The statement may not be admitted into evidence until the State has proved that it is admissible.

If X denies making a statement to the police, the making of the statement becomes a factual issue. The prosecutor will have to call the police officers who recorded the statement to prove that X did indeed make the statement. X or his lawyer is entitled to cross-examine these police witnesses. (The defence is entitled to cross-examine any defence witness.)

If X admits that he made the statement, but asserts that the statement was not made freely and voluntarily, the prosecutor will have to call evidence usually the police officers who interrogated X and who recorded his statement, in order to try to prove that the statement was freely and voluntarily made.

See The Prosecutor's Handbook p 107.

The correct procedure for producing an unconfirmed statement is as follows:

  • When a policeman is giving evidence and is about to relate what X said to him, he should say ' The accused made a statement to me.'
  • He should then stop. If he does not stop, he should be stopped. If the prosecutor does not stop him, the magistrate should.
  • If he says, 'The accused then admitted...', he should be stopped at once, told of his error, and the magistrate should record 'the accused then made a statement' to this witness.
  • The prosecutor should then ask the witness the standard questions-

a) Was the X in his sound and sober senses at the time?

b) Did he make the statement freely and voluntarily?

c) Was any undue influence brought to bear on him to make the statement?

  • The prosecutor should then say to the Court, 'The State proposes to tender this statement in evidence', or words to that effect.
  • If all the questions set out in 4. have been answered satisfactorily, the Court should then ascertain from the accused whether he wishes to challenge the admissibility of the statement, and should explain, if he is not represented, what is meant by challenging its admissibility.
  • If the accused does not challenge, the witness may then be invited to produce the written statement or recite the oral statement, as the case may be.
  • If the accused does properly challenge the admissibility of the statement, then a trial within a trial must ensue if the prosecutor still wishes to produce the statement.

See BC & Anor HH-255-84.and Nkomo & Anor 1989 (3) ZLR 117 (S). See also The Prosecutor's Handbook pp 104-105 which sets out the questions that the prosecutor should ask the policeman when seeking to produce an unconfirmed statement.

At a trial within a trial resulting from a challenge to an unconfirmed statement the procedure is as follows:

The prosecution first calls its evidence. The defence may cross-examine the State witnesses. The defence then calls its evidence and the State may cross-examine the defence witnesses. Counsel may then make submissions and the judicial officer makes a ruling on the admissibility of the statement. In a High Court case the assessors will not be present at the trial within a trial


See Zimbabwe Criminal Defense Manual