CRI/T/19/79 IN THE HIGH COURT OF LESOTHO
In the matter of:
Delivered by the Hon. Mr. Justice M.P. Mofokeng on the
6th day of May, 1980
This is a judgment in a trial within a trial heard in the absence of the gentlemen assessors(although strictly speaking this absence of the assessors is unnecessary because they do not decide anything. They are purely advisory and cannot, therefore, be equated to a jury nor do they have a vote in the final decision of the Court.) (See Rex v. Faku and Others. CRI/T/47/78(unreported) dated 7th May 1979 at pages 3-4). However, the trial within a trial was held as a result of an objection taken by Mr.Makhene, on behalf of Majake Molupe (hereinafter referred to simply as the accused), to the admissibility of a certain statement allegedly made by the accused to a magistrate. The essence of the objection, as I understand it, is that the statement was not made freely and voluntarily but under duress, the accused having been subjected to severe assaults and threats to compel him to make the said statement, the brain-child of the police He was further threatened that if he did not repeat what the police had taught him to say, he would be severely assaulted and eventually killed.
Section 223(1) of the Criminal Procedure and Evidence Proclamation provides conditions which must first be satisfied before a statement, which is a confession, can be admitted in evidence. These are that a confession will be admitted if it is proved to have been "freely and voluntarily" made by such a person in his "sound and sober senses" and without having been "unduly influenced" thereto. As Van Den Heever, JA pointed out in Rex v. Kuzwayo 1949(3) S.A. 76l(A)at 768:
"These notions with which the proviso operates
are plainly concepts ejusdem generis and relate to factors which are calculated to negative the exercise of free will. The section (exactly the same as ours) contemplates the admission of confessions made before or after arrest and even after commitment".
I, with respect, entirely agree.
It is trite law that the onus is on the Crown to prove beyond reasonable doubt the prerequisites prescribed by the section. (See Rex v. Masupha and Others, CRI/T/12/74 dated 25th June, 1974 p.1, Rex v. Pesa Mokhopi, CRI/T/19/76 dated 26th November 1976 p.l and Rex v. Faku and Others(supra) p.3; Nkazana v. Regina 1955 H C.T.L.R. 71 at 72; Rex v. Douglas Zwane and Others, Swaziland Law Reports 1970-76 p. 232; State v. Zindaba and Others, Botswana Law Reports 1976-78 p.49). The proper approach in cases of this nature, i.e. a trial within a trial has been neatly summarised by Holmes JA in the matter of S. v. Dlamini, 1973(1) S.A. 144(A) at 146 F-G as follows.
" all the relevant evidence, from the time
when the police first got in touch with the accused to the time when he made a confession to the magistrate, has to be analysed very carefully indeed, the pros and cons going into their respective scales; and, after the weighing, the Court has to decide whether there is a reasonable possibility that the confession was not made freely and voluntarily; or that the accused was not in his sound and sober senses; or that he was unduly influenced "thereto" (i.e. to make a confession). In other words, in all the circumstances is there proof beyond reasonable doubt that the accused's exercise of free will was not unduly influenced".
I intent to do just that.
The pillar of the Crown's case in this trial within a trial is the evidence of Detective Trooper Sakoane(hereinafter referred to as Sakoane). He denied that the accused was ever assaulted in his presence. He denied that he himself, in the company of Troopers Makoetje and Moletsane and sometimes Sekhonyane, severely illtreated, beat and tortured the accused. He denied that Moletsane pulled out the accused's front upper tooth with a pair of pliers and that he Sakoane broke one of the accused's molar teeth by hitting him with a fist on the jaw. In short, he denied everything put to him by defence counsel which it was alleged the accused would tell the Court. However, and without going into the details of Sakoane's evidence, some of his answers are quite revealing. On being asked whether the
accused was assaulted he replies, staggeringly. "I don't remember him being assaulted". He says, categorically, about the accused "After he had been to the magistrate(to make a confession) he was released and was ordered to report himself, at the charge office, on certain days. The other accused (i.e. accused 2 and 3) who did not make explanations were not released". Crown counsel very fairly pointed out to him that accused 2 actually made two statements to the police before he was released in August of that year, i e. 1973. However, under cross-examination he says: "I have made a mistake. He was asked to come and report himself before he made a confession. He reported himself every week". However, Felleng (the accused's headman) says that the accused was not released from police custody since the 28th April 1978 until November 1979, i.e. after he had been granted bail by this Court on the 12th day of November 1979. It was accused 2 who had been released by the police from their custody and was to report himself at the police charge office. It appeared accused 2 failed to do so and he, Felleng, was requested by the police to bring him to them. All the while, the accused was in police custody. Sakoane says, that the accused made a statement to him. He was satisfied with it. However, he did not write it down because, as he puts it. "I was not yet ready to write it down when he gave it". Then he immediately adds, as if it was an after-thought. "Accused 1 did not make a statement to me at anytime whilst I was at Mokhotlong" (that is the police charge office where accused 1 was kept). However the accused had repeated his statement to him. He did not remember if the accused made his statement to him two weeks after his arrival at the charge office but as he puts "it was soon after his arrival". It should be mentioned at this stage that the accused made his confession before the magistrate five weeks after his arrival at the charge office and only thereafter did he appear before a magistrate for a formal remand. To continue, Sakoane does not "remember" whether it was himself who took the accused to the magistrate for a formal remand, "the day after he made the confession".
Felleng told the Court that he first noticed the gap in the accused's front upper teeth "when he returned from prison" that is, after the former's release on bail. Before his arrest, however, the accused did not have such a tooth missing. This piece of evidence, it should be noted, was given by Felleng during his evidence-in-chief. The other important piece of
- 4 -
evidence of this witness has been stated earlier in this judgment.
The evidence of judicial officer who took the confession of accused was not seriously disputed. Accused stated that what he recited to the judicial officer is what the police taught him to say. The judicial officer in this particular case did not only ask the accused the questions contained in a format used to record such statements but asked additional questions when it was revealed that the accused had been in police custody for such a long time before deciding to come to him to make a "clean-breast of it". The action of the judicial officer was high commendable
Accused told the Court his frightening experiences at the hands of the police named earlier in this judgment. The moving spirit in this saga of torture, assaults, and threats, was W/O Moletsane. These experiences may be summarised as follows :
He spent a week at the charge office without being
asked a single question.
W/O Moletsane asked him if he know about the death
of the deceased and he denied any knowledge. That
same evening he was handcuffed, undressed and made
to undergo a horrible treatment referred to as
Apollo. During this process, which he says was
painful he denied any knowledge of the murder under
(30 The following morning Sakoane called him and told him that he was being taken before a representative of the King He says that he later came to know the person who posed as the representative of the King. He was one Tlokotsi - a member of "Lebotho la Khotso". However, when he appeared before Tlokotsi, he told him that the police were assaulting him saying that he should say that he knew about the death of the deceased. Tlokotsi did not do anything but merely said he would "speak to the police" Later that evening W/O Moletsane, in the presence of the other policemen (mentioned earlier in this Judgment) asked him why he had told the representative of the King "shit". Apollo treatment was again accorded him. They told him what they knew about the case and told him that is what he had to tell, While he was being accorded this infamous treatment, Moletsane extracted his front upper tooth with a pair of pliers. Insults were hurled at him when blood from his mouth dropped on the floor. He was partially released to clean it and while doing so Sakoane hit him on the right cheek with a fist and that caused one of his molar teeth to break. Thereafter they asked him if he had heard what they had said and he answered in the affirmative. He was told that he would be taken before an Assistant District Commissioner where he would have to agree that he killed the deceased.
(4) The following day, he was, instead taken to Sani Pass in order for the swelling on his body to subside.
On his return from Sani Pass he was asked if he
still recalled what he had been told. He agreed
He was then handcuffed and asked to repeat what
he had been told. He did and they appeared
The following day he was taken to the Assistant
District Commissioner, He told this gentleman that
he knew nothing about the death of the deceased.
He informed him about the assaults on him by the police. He later came to know this gentleman as being one of the police officers at Mokhotlong charge office.
(7) Later that evening he was accorded the Apollo
treatment because he had not said what he had been
told. He said he had made a mistake. In addition
to the usual Apollo treatment, his testicles were
pressed by a pair of pliers. He screamed with pain.
They then repeated to him what they had said to
him on earlier occasions and he agreed he had done all those things, i.e. how he and his co-accused had killed the deceased. It was said that the following day he would be taken to a magistrate to whom he was to repeat what they had told him.
Perhaps it should be mentioned here that the accused implicated his co-accused in his confession but the Director of Public Prosecutions decided to exercise the power conferred on him by section 10(7)(c) by discontinuing the present criminal proceedings against accused 2 just shortly before this trial
within a trial commenced and as he had pleaded not guilty he was
entitled to a verdict of not guilty and was accordingly found
not guilty and discharged (See Tsematsi Mosolo v. Rex, C. of A. (CRI) No. 1 of 1979 (unreported) a majority Judgment dated 7th September 1979 p.5; Attorney-General v. Phenyo Pholoa, Botswana Law Reports 1976-78 p.84 at 86).
The following morning, instead of going to the
magistrate, he was again taken to Sani Pass in
order that the swelling on his body should
On his return from Sam Pass he was made to repeat
what they had said to him. They said that if he
spoke "shit" before the magistrate they would kill
him. He was locked in a cell for three days
He was then taken before the magistrate but first
he was reminded as to what he should say to the
He was also reminded that if he did not tell all,
the magistrate would inform them. He was told
that the magistrate would ask him questions and
he should not deny anything. He agreed W/O
Moletsane said he would kill him if he did not
do as they told him.
(12) Sakoane took him to the magistrate where he repeated and answered questions as instructed.
If the evidence of the accused can reasonably be true then there is absolutely no doubt that he went through a harrowing experience. But was the statement he made to the magistrate a confession? In my view it was a confession because it was an unequivocal admission of guilt. It leaves no allowance for the accused to raise any defence such as self-defence (See David Petlane v. Rex. 1971-73 L.L.R. 85 at 91).
Accused, firstly remained at the charge office for a period of a week without him being asked any questions. There is no evidence before me that he had been formerly charged. He spent the next four weeks in police custody with no charge put to
in nor appearing before a magistrate. That was a long time for a person to remain in police custody. There is no explanation furnished to this Court for this delay There is again no evidence before this Court that the provisions of section 34 had been satisfied. In the words of Nathan, J, (as he then was) in the case of R. v. Douglas Zwane and Others (supra) p. 234 E-F :
"In my opinion to subject a person to interrogation by some eight policemen over a period of thirteen days is calculated to break his resistance and induce him to make a confession which he would not otherwise make of his own volition. I would refer in this connection to what was said by MacDonald AJA in the Rhodesian Court of Appeal in R. v. Hackwell and Others 1952(2) S A 388 (RAD) at p. 400H. 'If a stage has been reached when it has become desirable in the interest of justice to subject persons suspected of crimes to interrogation designed to establish their guilt, it is desirable that this power should be exercised in open Court, and it is undesirable that the power should be exercised by the Police in private'".
These remarks are apposite to the present trial before me Here the accused was interrogated by four policemen, and a police reservist over a period of five(5) weeks.
Accused says that he lost one of his front upper teeth in the hands of the police. The only police witness called by the Crown denied this allegation. However, accused's assertion does not stand alone in this respect. He is supported by the evidence of the Crown, viz, that of Felleng. In the absence of an explanation from the police in whose custody he was all the time when his tooth went missing, it seems to me that there
/is no other
is no other inference than that accused's assertion may reasonably be true and hence the circumstances as described by him as to how he came to lose his upper front tooth may reasonably be true.
While it is true that accused's written
confession to the magistrate contains an admission of the absence of inducement or promises or encouragement to make a confession, yet that is not per se the sole criterion for its admissibility. It is one of the factors in favour of the Crown and must be considered together with all relevant factors. However, in the present case before me, the accused gave an adequate explanation why ex facie the confession there was such an admission, and that explanation may reasonably be true.
The Crown's star witness, viz, Sakoane cut a very sorry figure before me. He was a very bad witness indeed. His
frequent use of the phrase "I don't remember if " suggested
to the Court that he was either not sure of his facts or he was deliberately being untrueful or both. He deliberately lied when he said that accused was released from custody a day following the latter's appearance before a magistrate where he made a confession. He only realised the absurdity of this evidence when it was pointed out to him that a magistrate has no power under our law to release a person who is charged with the crime of murder. He then retracted Again, on the one hand he could not remember if it was himself who took the accused to a magistrate for a remand. However, on the other hand he was
sure that the accused had been taken before a magistrate for a remand the day after he had made a confession. Why could he not remember if he himself took accused to the magistrate for a remand? Yet he denies when the accused says that he(Sakoane) took him before the magistrate in order to have his confession recorded I find this evidence of Sakoane rather strange and not consistent with a person who wishes to be candid with the Court. He was just plain lying.
According to him the accused made a statement to him verbally. The manner in which he went about this is also too strange to be true. He says:
"I was satisfied with the statement he made. I did not write it down I was not yet ready to write it down when he gave it. I don't remember writing or entering it in the docket diary. I did not release him because I was still investigating the case I wanted to find out if what he said agreed with other information".
And yet, according to him, the accused had incriminated himself in the very statement he had made. I honestly find this piece of evidence most incredible. I have come to the conclusion that his evidence was not trueful
The accused gave a detailed account of what took place between him and the police. He was quite confident in his manner The Court tested the veracity of his evidence. He said that when he appeared before Mr. Ramashamole, before whom the confession was made, he did not know that he was a magistrate except what he had been told by the police He thus did not complain to him about the assaults inflicted on him and also about the threats. He thought Mr. Ramashamole would inform the police if he complained to him and would be subjected to further
assaults, threats and torture as it had twice happened before However, he complained to Mr. Mapeshoane, whom he saw was a magistrate, about the assaults inflicted on him while in police
custody. I asked him if he knew Mr. Mapeshoane before his first appearance before him. He replied in the negative I then asked him how, then did he know he was a magistrate. The reply was staggering for this unsophisticated man. He said it was because he, Mr Mapeshoane, worked publictly and not in private like the other three men before whom he had appeared In my view, the accused was by far a superior witness to Sakoane. His explanation of how he came to make a confession before the magistrate, taken in conjunction with the evidence of Felleng, may reasonably be true. It must be made quite clear that the issue before me at present is not the accuracy of the statement accused made to the magistrate. (See State v. Zindaba and Others (supra) at p. 53). The issue is how he came to make it. The statement may bo perfectly true but the question which has to be decided at present is. how did the accused come to make it. Was he prompted by remorse or a sudden change of heart or was ho not free from any external pressure9
On the evidence before me I find that the accused was subjected to assaults as a consequence of which he appeared before a magistrate and made a statement. As to such assaults on persons in police custody I wish first to refer to the remarks of Dendy Young CJ (as he then was) in the case of The State v. Bitsang Bogwasi and Others (1968-70 Botswana Law Reports) 129 at 132 quoted by Rooney J. in the case of State v Zindaba and Others (supra) at page 54
"Now I wish to make it clear for the guidance of the police end. all concerned that, in my judgment, even prolonged interrogation including all the techniques and tricks of the trade directed to obtaining a confession from an accused who is prepared to talk - even if the interrogation proceeds to the point of possibly disturbing the normal functioning of the mind - may be justified in the interests of the investigation of the crime. The result, however, of such interrogation, although perhaps very useful in the investigation, will not be acceptable in the Court of Law as evidence of guilt. Police investigating officers and others must realise that there is a grave danger to the admissibility in a Court of Law of such a statement and a prosecution based on it is likely to prove abortive. I am satisfied that such influence is within the meaning of the proviso to section 223(1). The fact that the confession is ultimately recorded by a District officer or justice in the absence of the police will not necessarily cure the defect unless it emerges that a sufficient interval has lapsed to ensure that the effect of the interrogation has disappeared, and the accused's mind has returned to normality It is perhaps unnecessary to add that an accused who is unwilling to talk cannot be forced to do so". (My underlining).
The common law allows no statement made by an accused person to be given in evidence against him unless it is proved by the Crown beyond reasonable doubt that it was freely and voluntarily made in the sense that it has not been induced by threats of or actual physical assaults proceeding from a person in authority.
Secondly, in recent case of Rex. v. Bernard Teboho Faku and Others (supra) Cotran CJ made the following remarks (with which I am in agreement).
"In nearly all these cases that come before the High Court wherein a confession is sought to be admitted, the challenge is invariably made by the accused that the police assaulted him, and the invariable answer of the police is that they have not. In these cases the police usually have no evidence apart from the confession. Considering the frequency with which these allegations are made one would have thought that they would by now have been alerted into adopting methods to counter these allegations. This Court has on a previous occasion made the suggestion that in appropriate cases, immediately following upon an accused person's visit to the magistrate, the police should take the accused to the district doctor for medical examination. It would then be possible to call the doctor to give evidence in rebuttal".
The previous occasion the learned Chief Justice refers to, are
his remarks in the case of Rex v. Pesa Mokhopi, CRI/T/19/76 (unreported) in a Judgment dated 26th November 1976, which were, in part, as follows
" it is possible and fairly easy to prove that
an accused person has not been assaulted by the police if the police do their job properly I do
not wish to circumscribe all the steps that could be taken, suffice it to say that immediately upon the arrest of a person by the police he can be taken to a doctor for examination in order for him to certify what injuries he or she has, if any, or the nature of those injuries and then immediately after seeing a magistrate, he or she could be examined again and a certificate obtained. In this way the police themselves are able to elliminate phoney allegations, if such be the case, and prove it Furthermore, if they wish to rely upon such evidence they must always come prepared to refute possible contrary allegations, and not take it for granted that a statement before a magistrate is ipso facto sacrosant"
Or again as neatly put by Elyan, J. in the case of Nkazana v. Regina (supra) at p. 72F .
"The circumstances may occasionally suffice to prove
the voluntary character of such statements, but in general there must be direct proof. If the Court is left in doubt, such statements should be excluded". (My underlining).
I entirely agree. If I may venture to suggest yet another approach in addition to this problem. Where an accused person in police custody wishes to make a confession, he should [immediately be released to the household of a respectable and prominent member of the community, after medical examination. He could remain in that household until he has freely made up his mind as to whether he still wishes to make a confession If he expresses his willingness to do so, he would then be taken first to a doctor and then before a magistrate by that responsible member After making his confession he would, on the same lines as suggested by the learned Chief Justice, be examined by a doctor and a certificate be obtained The statement should then be sealed by the magistrate, in the presence of the accused and later handed to the office of the Director of the Public Prosecutions by the magistrate either personally or through his clerk. Under no circumstances should such a statement be handed over to the police. The contents of the statement should then be made known in Court when the magistrate gives evidence and breaks the seal. One assumes, of course,
that a copy of such a statement will not have been made at all. Only the original would be available. The police would, at least, have the evidence of independent witnesses in addition to their own and would not know what the accused has told the magistrate. It is important that these solutions be given a try. The ends of justice are daily being defeated when that ought not to be the case.
Taking the evidence as a whole the Crown has failed to discharge the onus cast upon it. In the words of Rooney J, in the matter of State v Zindaba and Others (supra) page 53
"...... the State (in this case the Crown) has not
established that the police did not apply physical and moral pressures to induce the First Accused to confess."
My ruling, therefore, is that the accused's confession
was obtained contrary to the provision of the law and it is thus inadmissible.
6th May, 1980
For Crown. Mr. Peete
For Defence: Mr. Makhene
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