S v Lovell (CRB 74 of 2014; HH 220 of 2016) [2016] ZWHHC 220 (22 March 2016)

1 HH 220-16 CRB 74/14 THE STATE versus GEORGE FRANCIS LOVELL HIGH COURT OF ZIMBABWE MUSAKWA J HARARE, 8, 9, 10, 11 and 12 September 2014, 3, 14, 15, 16 and 22 March 2016 Criminal Trial A. Masamha, for the state T. Mpofu, for the accused 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 8.30 a.m. He was thereafter detained and interrogated. It is common cause that the accused was taken to court on 11 April 2013. HH 220-16 CRB 74/14 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 2 p.m. on 8 April 2013. However, he was interrogated until 9 p.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 2 p.m. However, he had also stated that they started ‘interviewing’ the accused around 10.30 a.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 5 p.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 HH 220-16 CRB 74/14 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 11 a.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. HH 220-16 CRB 74/14 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. The accused voluntarily handed himself to Police in the company of his then legal practitioner. He was detained beyond forty eight hours. The first warned and cautioned statement and the indications were recorded in the absence of the accused’s legal practitioner. The accused’s legal practitioner only got involved in connection with the statement that was recorded on 11 April 2013. The accused person lodged complaints on the violation of his rights when he appeared before a magistrate on 11 April 2013. Mr Ngwerume who represented the accused submitted that he was denied access to him until the 11th April. 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 HH 220-16 CRB 74/14 (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 s 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 s 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; HH 220-16 CRB 74/14 (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 aterial 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, s 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 s 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 p 131: “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 s 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 HH 220-16 CRB 74/14 having conducted a trial within a trial. With reference to s 256 of the Criminal Procedure and Evidence Act the learned Judge, at p 349 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 p 350- “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 s 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 p 20-2. 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 p 20-14).” 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 the detention of the accused beyond the prescribed period, denial of access to legal represntation, the incompleteness of the video recording, the accused being handcuffed whilst making indications and 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 H-H-50-04, S v Jackson H-B-106-08 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 p 39 Mungwira J went to state that: HH 220-16 CRB 74/14 “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 HH 220-16 CRB 74/14 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 9 p.m. 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 HH 220-16 CRB 74/14 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