REPORTABLE
CASE NO. CC 32/2001
SUMMARY:
CALVIN LISELI MALUMO AND 119 OTHERS
vs
THE STATE
HOFF, J:
2005/12/08
CRIMINAL PROCEDURE:
Application for special entry. Consultation by prosecutors with the State witnesses during adjournments whilst such witness still giving evidence-in-chief No rule of law prohibiting interaction between prosecutor and witness. Consultation at this stage generally undesirable and should be discouraged. If circumstances require consultation opposing side should be informed and the purpose thereof
Identification of accused person - in dock per se not inadmissible - evidential consequences flowing from such identification important. Dock identification - unsatisfactory situation further compounded where witnesses prior to identifying accused persons in dock were given a photo album containing photos of accused persons with the names and numbers of accused persons - such practice suggests the identification of accused persons - is an irregularity - a departure from those formalities rule and principles or procedure in accordance with which the law requires a criminal trial to be initiated or conducted - fairness of trial compromised by such practice of prosecutor Special entry recorde
IN THE HIGH COURT OF NAMIBIA
CALVIN LISELI MALUMO & 119 OTHERS
APPLICANTS
and
THE STATE
RESPONDENT
CORAM: HOFF, J
Heard on:
01 - 02/12/2005; 05/12/2005
Delivered on: 2005.12.08
JUDGMENT:
HOFF, 3: This is an application in terms of section 317 of the Criminal Procedure Act (Act 51 of 1977) hereinafter referred to as the Act on the basis that the prosecuting counsel engaged in activities during Court adjournments which amount to irregular conduct.The irregularities according to Mr. Kauta who appears on behalf of the applicants are the following:
the prosecutors have been consulting with witnesses during adjournments;
the prosecutors have suggested answers to witnesses in Court;
the prosecutors have consulted with witnesses whilst those witnesses were still under cross-examination; and
the prosecutors have generaWy been coaching witnesses
Section 317 (1) of the Criminal Procedure Act, (Act 51 of 1977) provides as follows:
"Special entry of irregularity or illegality -
If an accused thinks that any of the proceedings in connection with or during his trial before a superior Court are irregular or not according to law, he may, either during his trial or within a period of fourteen days
after his conviction or within such extended period as may upon application (in this section referred to as an application for condonation) on good cause be allowed, apply for a special entry to be made on the record (in this section referred to as an application for a special entry) stating in what respects the proceedings are alleged to be irregular or not according to law, and such special entry shall, upon such application for a special entry, be made unless the Court to which or the judge to whom the application for special entry is made is of the opinion that the application is not made bona fide or that it is frivolous or absurd or that the granting of the application would be an abuse of the process of the Court".
The prosecutors denied that their activities amounted to unprofessional conduct.
Two witnesses, both members of defence counsel, were called on behalf of the applicants.
Mr Jorge Neves who was called as the second witness testified that he is appearing for nine accused persons. His testimony was that during the tea break on 30 November 2005 he entered the offices of the prosecutors and saw the witness, Mr Bernard Kanzeka, who prior to the adjournment was in the process of giving his evidence-in-chief, in the company of the two prosecutors namely Messrs July and Lakay. Mr Lakey was standing about one and a half metres from the witness and Mr July was seated in front of the witness and had in his hand what he assumed to be notes which Mr July had made in Court. He testified that from the reaction of the prosecutors he can categorically state that they had been consulting with the witness since he got the impression that the prosecutors had seen the devil. He asked Mr Lakay whether he had a cigarette, received a reply in the negative and when he left the office the door was violently closed behind him by Mr Lakay. Mr Neves stated that "if not mistaken" there was at that stage a fourth person in the office of the prosecutors. Mr. Neves related that he then went to the office of defence counsel where he reported the incident. Defence counsel Mr Samukange did not believe him, and he (Mr Samukange) was invited to have a look himself which Mr Samukange subsequently did.
According to Mr Samukange who appears on behalf of seven accused persons, he confirmed that Mr Neves came to his fellow defence counsel and reported that Mr. July was busy consulting with the witness "again" and that upon Mr Neves' invitation he went to the office of the prosecutors. The door was closed and he knocked on the door and simultaneously opened the door and walked to where Mr. July was seated Mr. July was facing the witness, Bernard Kanzeka, and had his handwritten notes in his hands.
Mr Lakay was seated next to the witness and Mr Lakay was holding the witness' statement in his hand. He (Mr Samukange) then went to Mr July and said to him: "Brother you are working too hard, take it easy". Mr July then replied "thank you very much, I will try to relax"followed by: "Brother can you excuse us, because we want to consult with the witness". Mr. Samukange testified that he replied that he would only excuse them on condition that "your witness does not falsely implicate and identify my clients". Whereupon Mr July replied: "Brother you know I won't do that". He then left the office of the prosecutors and reported to his colleagues and in particular apologised to Mr Neves that he doubted the report Mr Neves had made earlier to them.
During cross-examination Mr Samukange stated that the position in Zimbabwe is that once a witness has taken the oath it would be a gross irregularity for any party to interact or discuss anything with such a witness because once the witness has been sworn in it becomes the Court's witness. He further stated that where the prosecution continuous to interact with a witness called by the State after he or she has taken the witness stand such a witness may feel that he or she has an obligation to do "certain things"towards the party who called him or her.
Mr Samukange conceded that in his presence there was no consultation, no suggestion of answers and no coaching by the prosecution but stressed the point that he was urged to leave in order for the prosecution to consult with the witness. Mr Samukange also readily conceded that prior to him knocking and opening the door he heard no voices inside the office of the prosecutors. Mr Neves also testified about other incidents which occurred prior to 30 November 2005. The one incident concerned the state witness Mr Sinfwa. On this occasion on 21 November 2005 according to Mr Neves he was standing outside the office of the prosecutors in Windhoek. The window blinds were open and he could see Mr Sinfwa seated on a coach and Mr July was in a conversation with the witness while Mr July was holding a writing pad in his hand. He then went into the passage where he encountered Mr Kauta (counsel leading evidence on behalf of applicants) grabbed him by the arm and brought him to the door of the prosecutors which was standing halfway open and told Mr Kauta to look inside. At that stage the door was closed from inside and both of them left. This was observed at a stage when Mr Sinfwa had still been under cross-examination. Mr Neves stated that Mr July was seated facing the witness, that he could not see if anything was written on the notepad but Mr July was leaning forward in the chair he was seated and by the movements of his hands one could clearly see that a discussion was taking place.
Mr Neves stated that he heard no voices and thus cannot testify regarding the contents of the conversation between Mr July and the witness Mr Sinfwa.
Another incident occurred in Court in Grootfontein concerning a witness Mr Mwisepi when the witness was being cross-examined by Mr Neves himself the witness was asked the correct name of the place where a meeting allegedly took place in the Caprivi region, which the witness was unable to provide whereupon Mr July loudly and clearly provided the name of this place. Mr July then explaining that he did not directly provide the name, but that the witness was in the process of answering and that it was a simultaneous reply.
Mr Neves in addition testified about his knowledge of two photo albums in possession of the prosecution team, not disclosed to the defence, in which the photographs of accused persons, their names and numbers appear. These albums had been seen by himself in Court in Grootfontein. Since then he had not seen these photo albums.
The last incident related by Mr Neves also involves the witness Mr Sinfwa which incident occurred in Court when Mr Sinfwa was asked to identify an accused person, Geoffrey Mwilima, mentioned by him during his evidence-in-chief. Mr Sinfwa could not according to Mr Neves identify Mr Geoffrey Mwilima and it was then suggested by Mr July to move to his right hand side to see whether he could identify Mr Mwilima. Mr Sinfwa subsequently moved to his right.
Mr Geoffrey Mwilima at that stage had been seated on the right hand side of the witness. The witness Mr Sinfwa thereafter pointed out a accused person but it was a wrong identification.
During cross-examination Mr Neves indicated that he could not comment on whether the photo albums had been "misused" ov not but put the rhetorical question why had the albums been paged in Court by the prosecutor whilst the state witness was in the witness box. Furthermore, according to Mr Neves, when witnesses had been asked during cross-examination whether they had been presented with a photo album and whether they had a look at any of the photos, as expected, the answers had been in the negative.
The version of the State in respect of incidents of 21 November 2005 and 30 November 2005 differs to some extent from the version presented on behalf of applicants.
Mr July, a Deputy Prosecutor-General, attached to the Office of the Prosecutor-General testified in relation to the witness Kanzeka that he only saw the witness on 28 November 2005 at 17h30 but could not consult with the witness since there was no interpreter at that stage and that he could not consult with the witness in the English language because of the witness' limited knowledge of the language and that at all times when he consulted with the witness it was done through an interpreter.
Regarding the incident during the tea break on 30 November 2005 the witness was seated on a sofa inside the prosecutors' office. The witness had his hands against his head which prompted Mr July to enquire whether or not the witness was feeling well. The witness replied that he was not well and was fanning his face with his hands. He could not consult with the witness since there was no interpreter available. In Court the fact that the witness was not feeling well was conveyed to Court, the Court adjourned and the witness was able to see a doctor. Mr July relates that during the tea adjournment one of defence counsel, Mr Kruger, was inside their office enquiring about refreshments but he (i.e. Mr July) could not recall Mr Neves entering the office in search of a cigarette. Mr Samukange then at some stage also entered the office of the prosecutors and came directly to where he was seated. Mr Samukange then said to him: "Brother don't work too hard". He found this very strange since it appeared to him that Mr Samukange had entered the office with "some specific idea"'since it was something Mr Samukange would not normally do. Mr July related that at that stage he was reading notes he had made during consultation with the witness. Mr July responded to what was said and thereafter Mr Samukange had a conversation with Mr Lakay. He (i.e. July) could see no purpose why Mr Samukange was in the office and then said to him: "I am busy, can you please leave" whereupon Mr Samukange left and made a comment to the following effect: "Please do not falsely implicate or incriminate my clients".
Mr July continued, and denied that Mr Neves was inside their office during the tea break since he (i.e. July) was seated in such a manner that he would have seen Mr Neves entering the office. Mr July furthermore denied having consulted with witnesses under cross-examination during adjournments, he denied that he suggested answers to witnesses and denied that he coached witnesses. He in particular denied that he had consulted with the witness Sinfwa during the afternoon of 21 November 2005 after the Court had adjourned. Although Mr July could not deny that the witness Mr Sinfwa might have been in the office of the prosecutors, he testified that although the witness during cross-examination by Mr Kauta stated that he was in the office of the prosecutor where he received a witness statement the previous day, this was clarified during re-examination when the witness stated that he was mistaken and had in fact received the statement the previous day i.e. before he was sworn in as a witness or as he put it at the stage when he came from the village.
Mr July further stated that he cannot deny that he might have gestured to the witness Sinfwa but categorically denied that he ever consulted with the witness whilst the witness was under cross-examination.
Mr Lakay, a prosecutor attached to the Office of the Prosecutor-General supported the evidence of Mr July that no witness had been consulted with whilst such a witness was still under cross-examination, he denied ever suggesting answers to witnesses and denied ever having coached witnesses.
He readily conceded that to consult a witness whilst the witness is under cross-examination would be unethical conduct. Mr Lakay in material respects also corroborated the evidence of Mr July relating to the incidents of 21 November 2005 and 30 November 2005.
I shall briefly return to the evidence of Mr Neves where he related that defence counsel became suspicious of the possible unlawful activities since it was observed "that normally after an adjournment the witness changes his evidence on crucial aspects, even on certain points he had conceded to ... and after the adjournment he denies it completely".
It appears from the record that Mr Neves alluded to an incident where the witness Mr Sinfwa stated that he had not been a "rebel". The Court adjourned and the next day when reminded by counsel, Mr Kachaka what he had said the previous day he changed his testimony and said that he indeed could have been regarded as a "rebel" stating as an excuse that he had misunderstood the questions the previous day. This Court has however not specifically been referred to other similar incidents apparent from the record. Mr Neves also referred to an incident during Court proceedings when the witness Mwisepi was cross-examined during which Mr July suggested an answer to this witness. It appears from the record that Mr January had led the evidence-in-chief of the witness and that Mr July was present in Court during crossexamination. The witness was questioned regarding a meeting held during 1998 which according to the witness occurred in a place called Liselo and which meeting was attended by, Geoffrey Mwilima, one of the accused persons. It was put to the witness during cross-examination that this specific accused person actually attended a meeting in Liselo during the year 1999. It appears to me emphasis was placed more on the year during which this witness attended such a meeting than the place where it was held. The witness Mr Mwisepi in turn denies knowledge of a meeting attended by this accused person during 1999. In order to put into perspective the testimony of Mr Neves on this issue I shall revert to the record of the Court proceedings. It is clear that prior to the questioning regarding the place Liselo and the year in which it was alleged the accused, Geoffrey Mwilima, attended the meeting the witness Mwisepi was first asked about an allegation that Mr Mishake Muyongo at a meeting, attended by Mr Mwilima, called upon people to join in order to form a military wing of the UDP political party. It was put to the witness that during September 1998 Mr Geoffrey Mwilima was a member of parliament stationed in Windhoek and could not have attended such a meeting at Liselo in the Caprivi area. The witness was then requested to show in any one of his four statements where, he had mentioned the fact that Muyongo stated he wanted to form an army. The witness then referred to one of the paragraphs in one of his statements. Counsel then put it to him that it does not appear in his statement. The witness asked for more time to peruse his statement. Counsel continued with his cross-examination. The witness then at a later stage indicated that he had found the sentence, referring to a specific paragraph in his statement. He was then asked to which meeting did that paragraph refer to ? The witness stated that it refers to the meeting in 1998. It was then asked by Mr Neves as follows on page 1306 of the record:
"That's what I want to know, to which meeting do you refer to here that took place during 1998 - My Lord that was the meeting which was held at Liselo.
Yes, Mr Neves ?
Mr Neves: My Lord, may I just enquire one question ? Mr July, with all due respect, did you whisper the name Liselo and nodded with your head ?
Mr July: My Lord do I need to answer that question ?
Court:
Yes, please
Mr July: In fact I did.
Court: Excuse me ?
Mr July: I did.
Court: Before the witness answered or after he answered ?
Mr July: At the same time that he answered My Lord. I thank you My Lord.
Mr Neves: My Lord there I tend t disagree, it was shortly before the witness answered and it was twice and as I standing here I could hear the word, the name Liselo
It appears from the aforementioned firstly that Mr July indeed said the word "Liselo" in Court but there is a difference of opinion when indeed such a word was uttered. I may just at this stage pause and state that in my view it is grossly improper for a prosecutor at any stage to provide or to suggest answers to a witness.
I shall in turn revert to the two incidents on 21 November 2005 and 30 November 2005 respectively where the versions given by defence counsel and that given by counsel for the prosecution differ to some degree but some aspects are common cause.
Firstly, it is common cause that state witnesses during adjournments here in Windhoek were accommodated in the office of the prosecutors. This is a very unhealthy situation since it provides an opportunity for an interaction between prosecutors and witnesses even during those stages when witnesses had been under cross-examination. It is said that justice must not only be done but must be seen to be done and in a situation as described supra the perception likely to be created is that of a collusion between the prosecutors and witnesses which in turn may result in a conclusion being drawn that there was no fairness in the trial. Mr Small has informed me that witnesses could not be accommodated elsewhere during adjournments but has assured me that alternative arrangements have already been made and that witnesses would in future be accommodated elsewhere during adjournments.
Secondly, it is common cause that Mr Samukange visited the office used by the prosecutors during the tea break on 30 November 2005 and that he had a conversation with Mr July to the effect that Mr July was working too hard.
Thirdly, it is common cause that Mr Samukange before leaving the office of the prosecutors said something to the effect that he would excuse himself on condition the witness Mr Kanzeka does not "falsely implicate"h\s clients. Fourthly, it is common cause that at that stage the witness Kanzeka was in the process of giving his evidence-in-chief.
Fifthly it is common cause that the witness Kanzeka was in the office of the prosecutors during the tea adjournment.
It is further not disputed that during the adjournment on 30 November 2005 that after llhOO there were no interpreters available at Court who could have assisted Mr July.
Although Mr July categorically denied that Mr Neves was during that adjournemt in their office I shall accept that Mr Neves was indeed, although for a short while in the office of the prosecutors for the following reasons.
Firstly, it was not denied during the cross-examination of Mr Neves that he was in that office. What was in fact put to Mr Neves was that Messrs July and Lakay will testify that they cannot recall that he was inside the office. Secondly, from the evidence of Mr July it appears to him that Mr Samukange acted strangely, that he came there with a specific idea or specific purpose. This strange conduct can only be explained in my view if one has regard to the testimony of Mr Neves namely that he had informed inter alia Mr Samukange, what he perceived as irregularities, being committed by Mr July.
The reaction caused by the presence of Mr Neves in the office of the prosecutors was another issue in dispute. Mr Neve's testimony was that the prosecutors reacted as if they had been caught in flagrante delicto, in his words as if they had seen the devil. Mr Samukange who entered the same office about 5 minutes later did not testify that the prosecutors were surprised to see him. I am sure if there had been a visible reaction of shock or surprise he would also have testified about it. On the contrary it is common cause that prior to this incident the relationship between defence counsel and the prosecutors had been relaxed, informal and cordial and my interpretation of the testimony of Mr Samukange on this point was that he had a normal conversation with the prosecutors underscoring the existing atmosphere within which the two sides interacted. I am of the view that had the prosecutors been alerted by the presence of Mr Neves that their perceived irregular conduct had been discovered and had they wished to continue to consult with the witness, surely they would have taken the necessary precautions not to be exposed to further potential witnesses entering their office uninvited. I would therefore tend to accept the position that the prosecutors could not have been so surprised when they had seen Mr Neves inside their office.
What was another bone of contention was whether Mr July had requested Mr Samukange to excuse them since they (i.e. the prosecutors) were busy consulting with the witness. It was categorically denied by both Messrs July and Lakay that the word "consulting"was used by Mr July. In spite of these denials it sounds to me out of context that Mr Samukange would have retorted, when he was busy leaving the office, that he was leaving on condition that the witness would not falsely implicate his clients. However, be that as it may, it has not been shown during cross-examination that the evidence of Messrs July and Lakay on this specific issue should be rejected as false, the onus being on the applicants to prove on a preponderance of probability what has been alleged i.e. that the prosecutors consultea'with the witness.
Regarding the incident on 21 November 2005 it was conceded by Mr July that the witness Mr Sinfwa could have been in his office that afternoon and that he could have had a conversation with the witness but denied consulting with the witness at all. Mr Neves in addition testified that on this occasion although there was a conversation between Mr July and the witness Sinfwa he is unable to disclose the contents of such conversation. At best it can be said that Mr Neves only had a suspicion that a consultation took place. Similarly in my view applicants failed to prove that Mr July consulted with this witness at the stage whilst the witness was still under cross-examination.
I would now wish to return to the incident which occurred inside Court when Mr July suggested to the witness that he should move to his right hand side after he had been requested to identify the accused Mr Geoffrey Mwilima. It is common cause that Mr Mwilima was one of a number of accused persons seated on the right hand side of the witness. I must state that this Court immediately admonished Mr July stating that such an instruction to the witness was uncalled for. The witness however pointed out the wrong accused person. In this case Mr July clearly tried to assist the witness in an effort to identify a particular accused person. This singular incident in my view does not negatively impact on the fairness of the trial since no accused person had been prejudiced and in any event it demonstrated the inability of this witness to identify that particular accused person. It has been held (See S v Cooper & Others 1977 (3) SA 475 (T) at 476 B-C; Sv Mofokeng 1962 (3) SA 551 (A) 557; S v Ramovha en 'n ander 1986 (1) SA 790 at 795 H, and S v Xaba 1983 (3) SA 717 (A) that any deviation from certain formalities and rules of procedure prescribed by law and which results in prejudice to an accused may be brought to light by means of section 317 of Act 51 Of 1977.
I further need to deal with the ground that witnesses are being coached by the State prosecutors. Mr Neves testified that the defence were alerted to this situation since the witnesses changed their testimonies after adjournments.
This is a general allegation and I indicated supra that it appears to me that Mr Neves alluded to the testimony of Mr Sinfwa who first denied and later admitted that he had been a "rebel". I was not referred to other incidents. In my view taking this isolated incident, it is merely and assumption or suspicion, that the witness had been coached during an adjournment. I have not been referred to other similar incidents during this application in support of this general allegation.
There are no evidence at all that witnesses had during adjournments been coached in the sense that they have been requested what to say in Court in spite of what appear in their witness statements. In this regard it is significant, and this fact is not disputed that witnesses generally incriminated far less accused persons during the viva voce evidence than the number of accused persons mentioned in their witness statements. Again this is at best a mere suspicion and far from prejudicing any accused person. This witness (Sinfwa) clearly contradicted himself on this particular point which point may be seized when at a later stage during the trial the Court would be required to hear submissions regarding the credibility of this specific witness.
I am not convinced that the applicants have presented this Court with facts upon which it can be said on a preponderance of probability that the grounds upon which a special entry had been requested had been proved.
This is however not the end of the enquiry.
It is common cause and trite law that if it had been proved that the prosecutors consulted or interviewed State witnesses whilst those witnesses had been under cross-examination that such activities would have amounted to gross misconduct or an irregularity requiring a special entry in terms of the provisions of section 317 of the Act.
The paramount issue of importance in my view is whether it is an irregularity requiring a special entry on the record in terms of section 317 of the Act where the prosecutors as admitted by them consulted with State witnesses during adjournments and when the witness was still in the process of giving his evidence-in-chief. It was submitted by Mr Kauta that such conduct amounted to coaching of witnesses and amounts to an irregularity. It was further submitted that it makes no difference whether a witness is in the process of giving evidence-in-chief or whether the witness is under cross-examination once a witness has been sworn in as a witness there is a definite bar against interviewing such a witness at any stage unless the opposing side is informed thereof. In support of these submissions this Court was referred to the judgments in Regina v Matshaken & Others 1960 (2) Prentice-Hall Weekly Legal Services at H 360.
It is a short judgment and I will therefor quote the greater part thereof which reads as follows:
"A passage in the cross-examination of a witness read:
At the adjournment I walk-out with the public prosecutor and Court orderly. They asked if I had not sworn at the charge office that fourth accused had asked me not to give evidence in the theft: case. When I came back I said I was still going to say'
Wynne J referring to a paragraph in the work of May, Cases and Statutes on Evidence where the following appears: "Once a witness has begun his evidence it is highly undesirable for either party in either civil or criminal cases to interview that witness - R v Ramsay, 1935 EDL. 239 (25 P H F 28). The object of the rule is to prevent the coaching of witnesses, after he has taken his stand in the witness box, in regard to his future evidence in trial. The practice in Ramsay's case is authoritative in this Division. Once a witness has been sworn in he is the Court's witness. This Court in future will be vigilant in enforcing this salutary rule - a rule which in criminal cases, is binding equally upon the crown and defence". I agree that such a rule is a salutary one but the learned Judge has in my respectful view misread the case which he regarded as authority for such a salutary rule. That this is indeed so, is clear from what appears in the Ramsay case on p. 243 and I would again quote the relevant passage:
"It is argued that some of the evidence given by the complainant is not to be accepted because during the course of her cross-examination she was interviewed by the police. Now whether this is an irregularity which could be raised upon appeal is doubtful. But is it an irregularity ? During the course of the girl's evidence she made certain statements in cross-examination. The Court adjourned and the police asked her some questions in regard to the answers she had given. The magistrate thinks it was the prosecutor who interviewed her, and he says he could see no objection to the prosecutor interviewing this witness under these circumstances. I confess this power must be carefully exercised, but speaking for myself I can see no objection on the part of a prosecutor to interviewing a witness if he wishes to get to some further information which has arisen during his examination or her cross-examination".
In both the Ramsay and Matshaken cases supra in spite of the salutary rule the appeals had on the facts of those cases been dismissed ! I am unable to agree with Graham JP in the Ramsay case where he expressed the view that there could be no objection to interviewing witness during cross-examination. The Ramsay case supra does not support Mr Kauta's submission that it makes no difference whether a witness is giving evidence-in-chief or whether a witness is under cross-examination, that it would be an irregularity to interview such a witness. On the contrary it undermines Mr Kauta's submission that it is an irregularity and the Ramsay case is also contrary to the case of R v Wise 1975 (1) SA 597 (RAJ where Beadle CJ referred to facts similar as those in the Ramsay case and then concluded as follows:
"It was this aspect of the case which has occasioned this Court most trouble. The difficulty the Court had was whether this behaviour on the part of the prosecutor was not such a gross irregularity as to warrant setting the proceedings aside. We have come to the ultimate conclusion, however, that, while it was a gross irregularity, it was not an irregularity which, in the circumstances of this case, caused any substantial miscarriage of justice and we feel that it is perfectly safe to convict the appellant on the record as it stands and dismiss the appeal".
The passage in the Wise case supra relied upon by the applicants and referred to supra is in my view clearly obiter dicta. In fact the Honourable Chief Justice referred to it as a "comment on the behaviour of the prosecutor"and this Court is accordingly not bound by such obiter dicta namely, that it is a gross irregularity of such a nature warranting the setting aside of the proceedings.
In my view the consultation or interviewing of witnesses during adjournments and whilst the witness is in the process of giving evidence-in-chief is generally undesirable and should be discouraged. In their work Principles of Evidence, the authors Schiwakkard, Skeen and Van der Merwe First Edition on p. 299 the view is expressed that there "is no rule of law which prohibits a witness whose testimony has been interrupted by an adjournment from refreshing his memory during the course of such an adjournment".
What is of importance is what evidential consequences flow from such conduct and how does it impact on the right of an accused person to a fair as guaranteed by the Constitution of Namibia and the prescripts of our common law.
Mr July has during his evidence-in-chief explained why it is necessary in respect of those witnesses who are required to testify about events covering a period of a number of years to consult with those witnesses during adjournments in order to present evidence still to be given in Court after the adjournment in a chronological and logical manner. Although not prohibited to do so by any rule of law as indicated supra, the undesirability of such conduct in my view lies in the temptation of revising and rectifying the testimony of such a witness given prior to the adjournment.
If circumstances require that a prosecutor deems it necessary to consult with the witness giving evidence-in-chief, the proper manner would be to inform the opposing party of such a fact and the purpose thereof.
I am of the view that the conduct of the prosecutors in this case where they consulted with witnesses during adjournments on the basis of their witness statements, although undesirable does not amount to an irregularity of such a nature requiring an special entry in terms of the provisions of section 317 of the Act.
Mr Kauta in addition submitted with reference to the two photo albums that the prosecution is in essence running a private identification parade inside their office and that this amounts to an irregularity. This is another contentions issue and ties in with the allegations that the witnesses are being coached. The existence of two photo albums in which the photos of accused persons appear and which are in possession of the State is not disputed. During crossexamination it was enquired from Mr July whether when refreshing the memory of a witness giving evidence-in-chief these albums at all times remain in the possession of the prosecution it was replied as follows:
"When the witness is requested to identify persons that he referred to in his statement, the albums are provided to the witness concerned.
That is the point - it does not remain in possession of the prosecutor.
Yes. Sorry ? And then the witness will have a look at this album to refresh his memory, right ?
... Correct".
It is also the testimony of Mr July that in addition to containing the photographs of accused persons in one of the albums, the names of the accused persons also appear underneath the photographs and on top of the photographs appear numbers (presumably the number of such an accused person).
I have indicated supra that the primary consideration in deciding whether a special entry should be entered on the record is whether the irregularity complained of prejudices an accused person to the extent that it affects his right to a fair trial.
I shall now briefly compare the practice of providing photo albums to State witnesses during consultations with those witnesses, with the term "dock identification".
It is common cause that no identification parade had been held by the investigating officers at any stage prior to the inception of this trial. I have during an earlier ruling found that "dockidentification"perse'is not inadmissible but what is of importance is what weight the Court having regard to the particular circumstances of each case, should attach to such identification.
What weight now should this Court attach to a dock identification in those circumstances where witness had mentioned the name of an accused person in his witness statement and is not only shown a number of photos of accused person but is shown during consultation photographs together with the names and numbers of accused persons.
The aforementioned practice by the prosecutors has the same effect of putting a leading question to a witness which is generally prohibited . One of the reasons underlying such prohibition against leading questions to a witness is that is suggests the desired answer. In providing the photo album to a witness it suggests the identification of an accused person still to be identified in the dock.
The accused persons find themselves in a compromising position in the dock and this Court at the end of this trial will be required inter alia to access the capacity of witnesses to identify accused persons which had been pointed out by them. This unsatisfactory situation is further compounded by the fact that prior to the dock identification the witnesses are already provided with photos and names of accused persons. This in my view is an irregularity which militates against any perception of fair play, and is prejudicial to the accused persons in the sense that it negatively affects their right to a fair trial.
I am accordingly of the view that the practice of providing a photo album to witnesses in which accused persons are identified prior to the witnesses identifying the accused persons in Court amounts to an "irregular or illegal departure from those formalities, rules and principles or procedure in accordance with which the law requires a criminal trial to be initiated or conducted"and that such irregularity warrants a special entry on the record in terms of the provisions of section 317 of the Act.
(See S v Mofokeng 1962 (3) SA 551 AD at 557 G)
Section 317 (4) of Act 51 of 1977 provides that the terms of a special entry shall be settled by the Court which or the judge who grants the application of special entry.
In the result the following special entry is recorded:
"The proceedings in connection with the trial in respect of the accused persons were irregular to the extent that there having no identification parade held at any stage witnesses during the course of their testimonies were required to identify accused persons in Court whilst prior to such identification and during consultation with the prosecutors witnesses were expected to identify accused persons mentioned in their statements by reference to a photo album in which not only the photo of accused persons appear but also the identity of the persons so appearing on the photographs resulting in the fairness of the trial being compromised".
ON BEHALF OF THE APPLICANTS: MR P. KAUTA
Instructed by: DIRECTORATE OF LEGAL AID
ON BEHALF OF THE RESPONDENT: ADV. SMALL
Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL