CRI/T/16/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

and

JOHN
RALENGANA MAKAMOHO MAJORO

RULING ON
THE ADMISSIBILITY OF A STATEMENT MADE BY A3 TO A

MAGISTRATE

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 8th day of March,
1989

The
Ministry of Justice has prescribed a form which has to be used by a
magistrate when recording a statement/ confession being
made by an
accused person. The first part of the form consists of a number of
questions which have to be put to the accused person.
The answer to
some of the questions may be such that the magistrate must make a
full enquiry or investi­gation of what actually
happened before
the accused person appeared before him.

2

In the
instant case the learned magistrate asked the A3 whether he had been
encouraged by any person to make the statement. The
answer by A3 was
that he had been encouraged by the police officer in charge. The
learned magistrate merely recorded the answer
and made no
investigation as to the nature of the encouragement. It seems to me
that it was her duty to find out from the accused
how the officer in
charge had encouraged him.

In the
case of R. v. Gumede, 1942 A.D. 398 at p. 413 Feetham, J.A., said:

"In the case of Ibrahim v. R. (1914) A.C. 599, a Privy Council
decision which was referred to by Innes C.J. in R. v. Barlin,
1926
A.D. 459, Lord Summer.... says, at p. 610: "The rule which
excludes evidence of statements made by a prisoner, when they
are
induced by Mope held out, or fear inspired, by a person in authority,
is a rule of policy. A confession forced from the mind
by the
flattery of hope, or by the torture of fear, comes in so questionable
a shape, when it is to be considered as evidence of
guilt, that no
credit ought to be given to it..... It is not that the law presumes
such statements to be untrue, but from the danger
of receiving such
evidence, judges have thought it better to reject it for the due
administration of justice...."

We do not
know what kind of encouragement was made by the police officer in
charge but the onus is on the Crown to prove beyond
a reasonable
doubt that the statement was made freely and voluntarily. The onus
was on the Crown to prove that the kind of encouragment
made to the
accused was not of such a nature that it would affect the
admissibility of the statement. The learned magistrate did
not care
to find out what kind of encouragement was made.

3

It is
common cause that the encouragement came from P.W.1 Warrant Officer
Raleaka. The Crown decided not to call him as a witness
in the trial
within a trial proceeding. It seems to me that this was the witness
who would have enlightened the Court on the nature
of the
encouragement made to A3.

The next
two questions on the form show clearly that the learned magistrate
did not know What kind of investigation she was expected
to conduct.
The first question was whether the accused had previously made a
statement similar, if so, to whom and when. The answer
was in the
negative. The next question was why do you then desire to repeat, the
statement; the answer was "I think it would
be to my advantage
to make this statement." The learned magistrate again decided
hot to find out what advantage the accused
had in mind. it was her
duty to find out what advantage the accused was thinking of and to
tell him that he would not get such
advantage. I am aware that in R.
Baartman, 1960 (3) S.A. 535 (A.D.) the accused before confessing told
the magistrate that no one
had made any promises to him, but that ,he
wished to make a statement because he hoped that he would get a
lighter sentence if
he spoke. The Appellate Division said that there
was not duty upon the magistrate to tell him that he would probably
not get a
lighter sentence, and as no inducement had been held out,
the confession was admissible.

That case
can be distinguished from the present one because in the former no
promises had been made to the accused and the advantage
he expected
was that he would get a lighter sentence. In

4

The
present case there was the encouragement referred to above and then
the advantage expected by the accused was not specified.

The next
irregularity committed by the learned magistrate is of a very serious
nature. She says that the accused was brought into
her office by a
policeman and that when the accused made his statement the policeman
was in the next room whose door leads directly
into her office. She
could not even rule out the possibility that the policeman could have
been standing near the door in order
to hear what the accused was
saying. the general practice which is well known by policeman and
most magistrates is that a policeman
who has brought a suspect to
make a statement to a magistrate should be nowhere near the office of
the latter when the statement
is being recorded. An accused person
can never feel free when he knows that the policeman is overhearing
what he is saying to a
magistrate.

The
learned magistrate failed to reveal on the form (I.D.A.) that the
accused had refused to give a statement on the previous day
on the
ground that he was not prepared to do so if the statement was to be
used in evidence against him. She says that the accused
said he had
not understood the warning properly on the previous day. The logical
thing to have been done by the learned magistrate
would have been to
find out who had explained the warning to him during the night. The
other Crown witnesses say that the statement
was not taken on the
previous day because the learned magistrate had other work to do.
These contradictions show that the Court
is not being told the truth.

5

I am of
the opinion that because of the unsatisfactory circumstances
preceding the making of this statement it cannot be said that
it was
made freely and voluntarily. It is inadmissible.

J.L.
KHEOLA

JUDGE

8th
March, 1989.

For the
Crown : Mr. Mdhluli

For the
Accused : Mr. Pheko and Mr. Seotsanyana.