Statements by Accused to Police (Zimbabwe)
Importance to police
The police must obtain evidence of the commission of the alleged crime in order to secure a conviction in court. Not infrequently the sole or primary evidence which is produced in court is an incriminatory statement made by X to the police. The police tend to rely heavily on obtaining such statements. It is relevant here to note that in terms of s 273 CPEA a person may be convicted on the basis of his confession alone, provided that the offence confessed to has been proved by other competent evidence to have actually have been committed.
Advice on making statement
The defence lawyer may be brought into a case at an early stage and obtain access to his client who is in the custody of the police before the client has made a statement to the police. The client may, for instance, have insisted that he consult with his lawyer before he is prepared to make a statement.
After hearing the client's story, the lawyer will be able to advise his client about the making of a statement to the police. The nature of the advice will depend on the instructions he is given. In some instances he will advise his client to make a statement; in some he will advise him not to make a statement; in some he will advise him to allow him (the lawyer) to draw up the statement based on his client's instructions. The factors affecting the advice in this regard are dealt with earlier under "Arrests -Advice on statements to police".
Presence of lawyer when statement being made
If his client instructs his legal practitioner to be present when the police record a warned and cautioned statement, the legal practitioner is entitled to be present to protect his client's interests when the police record the statement.
Access after statement made
The lawyer often is only brought into the case or only manages to obtain access to his client after his client has already made a statement to the police.
The denial of access of a person to his lawyer is a violation of that person's constitutional rights. If the person asks for his lawyer before or during police interrogation, the police are supposed to stop the investigations and only resume after X has had consultations with his lawyer: Slatter & Ors 1983 (2) ZLR 144 (H).
In the process of taking instructions from his client the lawyer must find out these details from his client pertaining to the statement which he has made to the police:
- the circumstances surrounding the making of the statement: was he forced to make the statement or were any incentives offered to him to make it? The legal practitioner must not, however, put questions in such a way as to suggest that he must allege that he was illegally pressurised by the police into making the statement;
- whether he asked to consult with his lawyer before making the statement and whether he had been denied access to his lawyer until after he made a statement;
- what sort of a statement it was: was it an oral statement or a written one; in what language did he give the statement; did he write out the statement himself; was he warned and cautioned before making the statement; was the statement typed and was his signature witnessed? (It is important to find out whether X understands the language in which the statement was recorded. For instance if the statement was recorded in Shona or English when X only speaks and reads Ndebele then X could not possibly have made this statement.)
- what did he say in the statement?
- was he taken before a magistrate to have the statement confirmed and, if he was, what did he say in reply to the magistrate's questions?
If the client is literate he should be allowed to read over the statement. If he is not, the statement should be read to him. Especially with the unsophisticated client, care must be taken to find out whether the client accepts that he made the entire statement to the police. Enquiries must be made to ascertain whether the client is in fact alleging that he was forced to sign a statement which was concocted in its entirety by the police or that he made some of the statement consisted of portions added on by the police about which he had made no statement.
If the client says he was forced to make the statement or was unduly influenced thereto full details must be extracted as to what pressures were brought to bear upon him to make the statement. If the client alleges that he was subjected to physical maltreatment to extract a statement from him, the lawyer should ask his client to show him any signs of such maltreatment on his body and, if it seems that there is substance in these allegations, the lawyer should insist that the police immediately allow his client to be physically examined. If the police refuse to allow this, then the lawyer can apply to court for a court order requiring that such a medical examination be carried out.
Where the client maintains that he did not make the statement voluntarily and the statement has not yet been confirmed before a magistrate, the client should be told that he must insist on having his lawyer present at any such confirmation proceedings. If the client is brought before a magistrate to confirm a statement and his lawyer has not been informed of these proceedings, the client should tell the magistrate that he has a lawyer and has instructed him to represent him at these proceedings. The lawyer should also inform the police that he has been instructed to appear for his client if his client is taken before a magistrate in order to have his statement confirmed and that he should be notified before any such proceedings take place.
If the client does not have enough money to engage the lawyer to represent him at the confirmation proceedings, the lawyer should tell his client to give full details to the magistrate of the circumstances surrounding the making of the statement and the pressure which was exerted upon him to make it.
Where the State seeks to introduce an unconfirmed statement in evidence at X's trial and this statement is challenged on the basis of duress or undue influence, the onus will be on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily: Slatter & Ors 1983 (2) ZLR 144 (H); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S)
In terms of s 113 CPEA, X may be brought before a magistrate for the purposes of having a statement made by him confirmed. Statements include confessions. Also encompassed are statements made to the police while X is pointing out things or making indications and statements made on the way to the location where indications are to be made. The confirmation proceedings take place in camera.
The confirmation procedure was introduced to try to cut down on the numbers of "trials within trials" consequent upon challenges in court by X to the admissibility of their confessions. The purpose of the confirmation proceedings is to give X the chance to object to the manner in which a statement was extracted from him. If he did not make the statement voluntarily or made it because of undue influence, he is supposed to tell the magistrate about this at the confirmation proceedings and then the statement will not be confirmed.
Once a statement has been properly confirmed, it becomes far more difficult to challenge the admissibility of that statement. This is because the onus is then placed on the defence to prove that despite the confirmation of the statement, the statement was not made by X or that it was not made freely and voluntarily and without undue influence.
On the other hand, if the police have not had the statement confirmed or the magistrate refuses to confirm it because X has alleged that it was not made freely and voluntarily, the onus will then rest on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily and without undue influence.
The correct procedure at confirmation proceedings, where X is not legally represented, is as follows:
- The proceedings should take place in camera.
- The prosecutor produces the statement by handing it to the magistrate and informing the magistrate of when, where and to whom it was made.
- The statement is then read over to X and he is informed of when, where and to whom he made the statement.
- The magistrate will then ask X whether he admits making the statement and making it freely and voluntarily and without being subject to undue influence. The magistrate must explain that if X admits these things or refuses to answer these questions the statement will be confirmed and that it can then be used in evidence against him at his trial on mere production of the statement by the prosecution;
- If X admits that he freely made the statement or refuses to answer the questions, the statement will be confirmed and can be admitted in evidence at his trial on mere production.
- If X denies he made the statement or alleges that it was not freely made, the magistrate will ask him to give sufficient facts to back up his denial or his allegation of duress or undue influence and, where it is reasonably possible for him to do so, to identify those who applied the undue pressure on him. The magistrate must also tell X that if he fails to mention any facts salient to his allegations concerning the making of the statement, adverse inferences may be drawn from this failure when the admissibility of his statement is being dealt with at his trial.
- If X alleges that he has been subjected to physical ill-treatment to extract a confession, the magistrate must note and record any signs of injury on the body of X. The magistrate has power to order an immediate medical examination of X. This power should usually be invoked in these circumstances in order that any evidence of ill-treatment can be detected by a medical expert.
- The magistrate also has the power to order such other investigations as he considers to be necessary or desirable in the circumstances.
- If X gives replies in which he implies that some inducement has been offered to him to make the statement (such as that he would be released if he did so), the magistrate must clarify what X means. He should refuse to confirm the statement if it emerges that X is saying that undue influence was brought to bear upon him.
- The magistrate should also look for factors which indicate that undue pressure has been applied, such as that an appreciable amount of time has elapsed between the recording and signing of a confession and the bringing of X to have his statement confirmed. If X has alleged he was tortured to extract a confession and confirmation has been sought a long time after the statement was made, this delay may suggest that this time lapse was to allow signs of injury to disappear.
- If X indicates that parts of his statement were not freely and voluntarily made, the magistrate should decline to confirm the statement. It is not proper to confirm some parts and to decline to confirm the parts which X has said were not freely and voluntarily made: Munukwa & Ors 1982 (1) ZLR 30 (S).
- During confirmation proceedings the magistrate should ensure that the investigating officer and his colleagues remain outside the courtroom and are kept far enough away so as not to be able to overhear what is going on inside the courtroom.
If these procedures are not strictly adhered to the confirmation proceedings will be invalid. In Slatter & Ors 1983 (2) ZLR 144 (H) it was laid down that denying X access to his lawyer violates the constitutional rights of X and constitutes undue influence upon him. If X is denied access to his lawyer before or during the confirmation proceedings, the confirmation proceedings will be rendered invalid and the onus would revert to the State to prove that the statements were made freely and voluntarily. This would even apply where relatives of a person in police custody had instructed the lawyer without X being aware of this and the lawyer is prevented from seeing the person concerned subsequently.
In many cases the defence lawyer will only be brought in at a stage when his client has already made an incriminatory statement to the police and the statement has already been confirmed before a magistrate. It may still, however, be possible to challenge the admissibility of the incriminatory statement at the trial. If the defence can establish that the confirmation proceedings were improperly conducted, the proceedings will be ruled to be invalid and the statement will be treated as if it had not been confirmed.
Even if the confirmation proceedings were properly conducted, the admissibility of the statement can still be challenged either on the basis that the original statement was not made freely and voluntarily without undue influence or on the basis that the statement was not made at all by X and the statement is not true. The onus lies on the defence to prove the inadmissibility of a confirmed statement. In determining the admissibility of a statement the court may draw adverse inferences from X's failure to mention facts at the confirmation proceedings which in the circumstances he could reasonably have been expected to have mentioned: s 115 CPEA. Any failure of X to tell the magistrate about the undue pressure applied to him to force him to make the statement would therefore be explained. The reason for X's failure may have been that he was threatened with further violence by the police when he was returned to their custody if he did not tell the magistrate that he had made the statement freely and voluntarily.
Even if the confirmation proceedings were properly conducted, the admissibility of the statement would still be open to challenge at the trial in certain circumstances. For example, the client may inform his lawyer that although the police forced him to make the statement he did not tell the magistrate about this at the confirmation proceedings because he had been warned by the police that he would face dire consequences once he was returned to their custody if he told the magistrate that he had been forced to make the statement.
The circumstances in which a statement would be inadmissible because it was not free and voluntary or was the result of undue influence are dealt with later under "The Trial - Production of Statements by the accused to the Police."