HIGH COURT OF LESOTHO
LETSIE NGOANANTLOANA LEROTHOLI
the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 13th
day of July, 1990.
Crown : Mr. G.S. Mdhluli, Director of Public
Mr. V.N. Qhomane, Crown Counsel;
Mr. S.P. Sakoane, Crown Counsel.
First Accused : Mr. L, Pheko
Second Accused: Mr. M. Matsau
TRIAL WITHIN TRIAL
Barlin (1929) AD 459;
v Ping Lin (1975) All E.R. 175;
to the ruling in this trial delivered this morning,* that is, with
reference to the facts immediately preceding the alleged
making of a
statement by the second accused, to a Private Tsephe Tsephe, a
bodyguard of the first accused
conducted a trial within a trial in which the only evidence adduced
was that of Private Tsephe, the defence declining to
evidence as to involuntariness.
learned Director of Public Prosecutions Mr. Mdhluli is inclined to
the view that the word "confession" contained in
228(1) of the Criminal Procedure & Evidence Act 1981 is not
necessarily given the same meaning as in section 228(2).
Zeffert in their work the South African Law of Evidence (3 Ed.)
observe at p.183 that the relevant legislation in
the Republic of
South Africa was intended to reproduce the English common law as it
was in 1830. Certainly now the "position
at common law in
England and Republic of South Africa is that the word "confession"
extends also to inculpatory statements.
Director refers to the dicta of Innes,CJ. in the case of R v Barlin
(1) at p."462 where the learned Chief Justice in effect
".....in the sense that it (the statement) has
not been induced by any threat or promise proceeding from a person in
I do not
see that the proviso to section 228(1) takes the common law situation
much further, other than to also exclude a statement
made, when for
some reason the accused's mind was disturbed so as to deprive him of
reason. Thereafter, the proviso has been interpreted
to mean that any
statement made as a result of violence, threats promises or subtler
pressures, which operated to negative the
accused's freedom of
volition, is excluded.
learned Attorney for the second accused Mr. Matsau submits that the
words "person in authority" do not mean that the
whom the statement is made necessarily has authority over the
accused: it is simply that he has authority over the prosecution.
That I consider to be a correct statement of the law. Further I am
not aware that the person in authority need necessarily have
conducting an investigation in the matter when the statement was made
to him: see the House of Lords case DPP v Ping "Lin
the present case I have held .Private Tsephe to be at peace officer,
indeed a "policeman" for the purposes
of section 228(2).
The weight of authority indicates therefore that he is a person
with authority over
clearly there is no question of any force or violence or threats. The
question remains whether there was any promise or inducement,
and I emphasise this, operated to negative the second accused's
freedom of volition.
satisfied that Private Tsephe, as the bodyguard of the first accused,
had the authority to exclude the second accused and his
Sgt. Selala Bereng Lerotholi from the first accused's residence,
despite the fact that they were both senior in rank
Nonetheless, as the Director submits, they voluntarily approached the
residence of the first accused. It was they who voluntarily
gain entry thereto. They were not in any way obliged to make any
statement to Private Tsephe.
Matsau speaks of an "obligation" to reveal the purpose of
their mission, that is, if they wished to gain access to
premises. But that "obligation", if one can call it such,
was founded on the second accused's personal desire to
and that was purely a voluntary matter. Had the second accused
declined to make any such statement, he could, as the
submits, simply have departed. He was, in brief under no
compulsion whatever to make any statement.
even if one could regard the query by Private Tsephe, "Why can't
you come tomorrow morning?", as an inducement,
it cannot be
regarded as an improper inducement held out by the Private Soldier,
so as overcome the second accused's freedom of
volition and thereby
cause him to incriminate himself. It will be seen that the particular
wording of section 228(1) is "...
unduly influenced". It
may well be that the second accused was influenced to say what he
said, in order to gain entry to the
premises. It cannot however be
said that such influence, emanating from one who made enquiry as to
the nature of any urgency, was
in any way "undue".
Matsau refers to the contents of pp.203/204 of Hoffman & Zeffert
ibid (4 Ed. ) , and urges the court to give the word "voluntary"
its grammatical rather than its technical meaning. He points to the
fact that, for example, the English Criminal Law Revision Committee
recommended that the ambit of exclusion should be extended to cover
statements induced by persons not in authority. I have held
Tsephe to be a person in authority. In any event, taking the word
"voluntary" in its grammatical sense, I cannot,
respect, see how the statement in the present case could possibly be
other than voluntary.
As to the
aspect of the strict rules of admissibility operating unfairly
against the second accused, and the aspect of the court's
discretion in the matter, I cannot see that the circumstances of the
making of the statement in any way gave rise to any
unfairness, and I decline therefore to exercise my residual
discretion in favour of the second accused.
satisfied beyond reasonable doubt, on the evidence before
the statement was voluntarily made and I rule it to be admissible.
at Maseru This 13th Day of July, 1990.
CULLINAN CHIEF JUSTICE
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