CASE NO.:   CC   32/2001
REPORTABLE

SUMMARY

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

CALVIN LISELI MALUMO & 112 OTHERS

HOFF, J

24 February 2011

Objection raised to bar State leading new evidence - a constitutional bar - based on the infringement of constitutional rights - violations of Article 12 (1)(b) - trial must take place within reasonable time, Article 12 (1((d) right to adduce and challenge evidence i.e. right to cross-examination, Article 12 (1)(e) righ to have adequate time and facilities for the preparation and presentation of defence before commencement of and during trial.

Where State in criminal proceedings intends to present evidence and accused person alleges that evidecne was obtained in manner which violates a fundamental right -concerns admissibility of evidence State intends to rely upon - onus is on State to prove beyond reasonable doubt that fundamental right not violated - no onus on accused person to prove breach of fundamental right.

Late discovery of witness statements tantamount to no discovery at all - may breach constitutional right of accused person to fair trial and may be excluded by Court. State in conducting a continuous investigation during course of trial saddled with duty to respect and uphold fundamental rights of accused person.

If new evidence be allowed would necessitate calling of a number of witnesses who previously testified - prolonging trial.

Untimely disclosure of witness statements - defene counsel if they had known earlier in trial what they know now would have revised defences or asked other questions of previous witnesses.

Right of State to conduct investigations into circumstances of crime is circumscribed both in respect of the common law and the Constitution.

In spite of fact that it may have far-reaching consequences for State, Court may bar admission of evidence obtained in violation of accused's constitutional rights where its admission would render trial unfair or otherwise detrimental to the administraton of justice - State does not have unqualified right to produce new document or new witness during any stage of trial.
Contamination of statements - real risk - new statements may contain allegations based on information obtained by means of secondary sources and not from witnesses' original knowledge or memory of incidents.

Court would be unable to distinguish between original knowledge and "implanted" knowledge - creates real trial related prejudice.

Right of State to present evidence by way of continuos investigations during course of trial must be limited by the right of accused to fair trial.

CASE NO.:   CC   32/2001
REPORTABLE

In the matter between:

THE STATE
and
CALVIN LISELI MALUMO & 112 OTHERS

JUDGMENT

Defence counsel Messrs. Dube, Kruger, Neves, Nyoni, Kachaka and McNally supported the objection.

Background

[2] On 31 August 2001 this Court refused an application for disclosure of witness statements to the defence. The evidence led on behalf of the State during that application was that some state witnesses had received death threats and had been intimidated by family members of the accused persons in order to prevent those witnesses from testifying against the accused persons. Subsequently at the commencement of this trial on 15 March 2004 a compromise was reached between defence counsel and state counsel which was made a order of court. The essence of this compromise was that the State must disclose at least 3 court days prior to a witness being called to testify, the witness statement of that state witness to defence counsel.

[3] On 10 September 2008 subsequent to an order by this Court to disclose all the witness statements of one of the investigating officers the State informed the Court that they had disclosed all the statements of state witnesses contained in the police docket.

[4] On 31 January 2011 the defence was provided with ten statements of state witnesses. From the written heads of argument of Mr Kauta the following (which is not disputed) appears:
1. in respect of witness, Brogan Maumbilo, that the statement contains an account of events during the year 1998 relating how the witness was influenced to go to Botswana and his participation in an attack on Mpacha military base;
2. in respect of Eustace Simataa, that the statement contains an account of events during October 1998 which relate to how the witness was approached on various occasions to be part of a group of persons who wanted to secede the Caprivi region by violent means;
3. in respect of Precious Katanga Kabula, that the statement relates to events during 1999 on unknown dates how unsuccessful attempts were made to influence the witness to flee to Botswana for the purposes of liberating the Caprivi region from Namibian rule;
4. in respect of Chikoma Tryphinan Sezuni, that the witness was approached by several persons who attempted to influence her to flee to Botswana in order to join the liberation army of Mr Mishake Muyongo and if she had agreed she would have secured employment in an independent Caprivi;
5. in respect of Mukungu Mukangu Morricious, the statement relates a conversation how someone joined others in Botswana with the aim of liberating Caprivi from Namibian rule;

These aforementioned statements had been deposed to between 30 December 2010

and 28 January 2011.

[5] In respect of the other five statements the deponents were, Elasca Samwele Sitali, Linus Manga Kufuna, Chrispin Mulatehi Likemo, Edwin Sitali Mweti, and Primes Vitssentsius Amwaamwa. These statements had been disposed to during the period 28 December 2010 and 28 January 2011.

[6] Mr July appearing on behalf of the State submitted that these last mentioned statements are not new statements but additional statements. He stated that in respect of Elasca Sitali a previous statement had been deposed to on 14 August 2001; in respect of Linus Kufuna a previous statement had been deposed to on 18 February 2000; in respect of Chrispin Likemo a previous statement had been deposed to on 3 March 2001. It is not clear in respect of Edwin Mweti and Primes Amwaamwa when they had deposed to previous statements but it appears to be common cause that previous statements had been deposed to prior to September 2008.

[7] In respect of the first five witnesses mentioned they had not previously deposed to any other statements other than those statements disclosed to defence counsel on 31 January 2011 and labelled by counsel as "new evidence".

[8] Mr July submitted that all the witness statements in broad would be dealing with factual disputes and that the objection raised by the defence affects not the admissibility of the evidence to be presented but only the weight to be attached to such evidence and thus counsel cannot object to the State leading such evidence. Other submissions were also made on behalf of the State to which I shall return to in due course.

The objection
[9] It was submitted on behalf of the accused persons that the objection in essence is a constitutional bar to leading new evidence by means of the testimonies of aforementioned witnesses.
The infringement of constitutional rights, it was submitted, relates to violations of Article 12(1)(b) of the Namibian Constitution which provides that a trial shall take place within a reasonable time, failing which the accused shall be released; Article 12(1)(d) the right of an accused person to adduce and challenge evidence; and Article 12(1)(e) the right of an accused person to have adequate time and facilities for the preparation and presentation of their defence before the commencement of and during their trial.

[10] It was submitted by Mr Kauta that from the evidence contained in the statements it is clear that the witnesses may give evidence which goes to the merits of the case; that it covers aspects of evidence which the State led over number of years and which had widely been published in the print and electronic media.

It was submitted that because witnesses who previously testified on relevant issues could not have been confronted with the contents of these new statements, since these statements had not yet been in existence, and similarly these new witness should they testify cannot be confronted with the replies of previous witnesses regarding the content of their statements since the versions of the new witnesses could not have been put to the previous witnesses because of the non-existence of these new statements.
By way of illustration Mr Kauta submitted that on 21 July 2008 a certain state witness Richard Mbala testified and Richard Mbala was cross-examined by himself. Statements taken this year indicate that a state witness Primes Amwaamwa who was never cross-examined by himself is involved in the matter relating to the testimony of Richard Mbala. Furthermore that the defence of the accused person had been put to Richard Mbala and that Richard Mbala has never been confronted with the new statements the State now intends to use.
It was therefor submitted that if the new evidence is to be allowed it effectively means that Richard Mbala and Primes Amwaamwa need to be recalled.

The opposition to the objection

[12] Mr July in short submitted a number of points in opposing the objection raised by the defence.

[14] Secondly, that although it is labelled "an objection" what in essence is before Court is an application in which certain relief is prayed for and since it is an application counsel must prove what they submit i.e. they must prove how the fundamental rights of the accused persons are being violated.
[15] Thirdly, that there is insufficient information before Court in respect of the allegations that the right of the accused persons to a fair trial will be prejudiced.

[17] Fifthly, that since the accused persons revealed no defences at the stage they pleaded to the charges, the State has the duty to present all the available evidence at the disposal of the State in order to prove its case.

[18] Sixthly, that the defence has a tool, namely cross-examination, with which the veracity of testimonies may be tested and counsel will have the opportunity to challenge the evidence of these state witnesses.

[19] Seventhly, a witnesses may in terms of section 167 of the Criminal Procedure Act 51 of 1977 be recalled and in terms of section 186 be subpoenaed by this Court if the evidence of such a witness appears to the Court essential to the just decision of the case. The question was posed whether it would also be a violation of the right to a fair trial should the Court decide to call a witness ?

[20] Eighthly, it is common cause between the State and the defence that there is a continuous investigation in this case by the investigating officers. Defence counsel is not bringing an application that the State should cease this continuous investigation. The State again asked the question, namely, what is the purpose of this continuous investigation if evidence discovered during the course of the investigation may not be utilised by the State in order to prove its case ?

[21] Ninethly, it has happened during this trial that the Court allowed the State to lead the evidence of a witness who had not deposed to a prior witness statement, after the Court had ruled that a witness statement must first be obtained and disclosed to the defence in compliance with the 3 day rule. In this instance, it was submitted there was no objection by defence counsel that the accused persons had been prejudiced in their right to a fair trial.

Authorities in support of objection

SA 725 (CC).

I shall later return to this issue.

challenge the right of the State to continue with its investigations, it was argued on behalf of the accused that such continued investigations whilst the trial was in progress, would deny the accused his right to a fair trial. Ebrahim J at 474 h - i held as follows:

and continued at 476 f - g as follows:

"It seems to me that a situation may well arise where the investigations being conducted by the State, whether before or during a trial, may be of such a nature that a court is constrained to exclude the evidence obtained in consequence thereof. In my view it will depend on the facts and circumstances of a particular case whether such a decision is justified or not. Accordingly, the decision whether the State should be restrained from conducting further investigations should only be taken on a case-by-case basis."

[26] Ebrahim J refused the application since he found that the application was based purely on speculative facts and were insufficient to enable the Court to evaluate whether the investigations were being conducted in violation of the accused's fundamental rights.

"It is manifest, too, that the court must have insight into such evidence before it can be in a position to determine its impact on the accused's right to a fair trial and whether it is admissible or not. An order which interdicts and restrains the State from conducting further investigations and debars it from presenting the evidence obtained in pursuance thereof, has far-reaching consequences. In my view, it would be ill-advised, if not impossible for a court to decide on the admissibility of such evidence without it having been placed before the court for consideration."

[32] In the Canadian case of R v Antinello reported in the Canadian Rights Reporter, vol. 28 CRR (2d) 65 dated 8 March 1995 the Crown made late discovery of a witness where the accused person was charged with first degree murder. The Crown became aware of the existence of this witness eleven weeks prior to the commencement of the trial and decided some ten days before the trial to call him as a witness. Three days after the start of the trial, defence counsel was told for the first time that the witness would be called. The defence counsel protested and asked for a mistrial, or a direction that the witness not be called.

[33] In an appeal from a conviction on a charge of first degree murder Kerans JA at paragraph 11 held as follows:

"It is common ground that the Crown had a duty to disclose to the defence the fact of the proposed Stapleton testimony. The learned trial judge held that the Crown was guilty not of a failure to reveal but rather arguably of an error about the timing of the disclosure. But the failure to make a timely disclosure is, nonetheless, a failure to disclose. It may breach the constitutional right of the accused to a fair trial if that failure denies to the accused a reasonable opportunity to prepare his defence."

Kerans JA continued and emphasised this point at paragraph 25 as follows:

"That leaves one remaining factor to asses on the topic of timeliness, that is, the relationship between the day of disclosure and the day of trial. That, with respect, is what this ground is about. Disclosure, when it came, was too late to save this trial date and offer the accused a fair trial."

(2d) at 188 delivered on 29 June 1990.
In this matter five youths were charged with the crime of assault with intent to steal and one of them was also charged with assisting a person escaping from custody.
The Crown on the third day of the trial disclosed "will say" statements to the defnce. Four Crown witnesses had already given their testimonies and the evidence-in-chief of a fifth witness had been led at that stage.

[35]    James J at paragraphs 9 - 11 stated the objection as follows:

"Defence counsel argued that the disclosure precluded their clients' right to make full answer and defence to the charges they faced.

The Crown has offered to recall prior witnesses for further cross-examination. Defence counsel argued that recall, even in the context of an order excluding witnesses, will nor cure the matter. Defence counsel argued that, if they had known earlier in the trial what they know now they would have revised defences or asked other questions of the first four witnesses.

Neither, defence counsel advance, can the failure to disclose in a timely fashion be cured by an adjournment of the trial."

and continues at paragraphs 16 and 17 as follows:

"It should not be the function of the trial judge in these types of applications to review the recently disclosed "will-say" statements and determine whether their content is contradictory, or whether counsel could or could not have asked other questions of previous witnesses, and whether rights have been deprived as a result. I ought to accept the statements of defece counsel that, had they received disclosure in a timely manner, they would have revised their defences, or asked other questions of previous witnesses.

Adjournments will not cure the defect in this disclosure process. Recall, however graciously offered by the Crown, will not effectively restore the accused's options."

[38] Secondly, in a judgment delivered on 3 November 2008 this Court held that an applicant must prove the existence and violation of a fundamental right applicable in those instances where an applicant alleges that a fundamental right has been violated by an Act of Parliament, regulation or other legal prescript and where such alleged violation forms the foundation of the relief sought by the applicant. It does not apply in a situation where the State in criminal proceedings intends to present evidence and an accused person alleges that the evidence was obtained in a manner which violates a fundamental right of that accused person.

[39] It is necessary to explain this by repeating what this Court held in the 3 November 2008 judgment and in particular paragraphs 19 - 24:

"It is now settled law that the answer to the question is: the applicant who alleged and relies upon such infringement bears the onus to prove the existence of a constitutional right and its infringement."

[40] Thirdly, this Court was provided with statements deposed to by the five new state witnesses. In addition as was stated in R v B by James J this Court ought to accept the statement by defence counsel that had they known earlier in the trial what they know now they would have revised their defences or asked other questions of previous witnesses.

[42] Fifthly, this issue will be considered in conjunction with the issue of the continuous investigation in this case.

[43] Sixthly, as was submitted by defence counsel this may be true in respect of the ten witnesses the State intends calling but not to those who had already testified and who could not have been cross-examined on the contents of these new statements and additional statements. In this regard the right to cross-examine witnesses in terms of Article 12 (1)(d) of the Namibian Constitution is violated and this in turn impacts upon the right to a fair trial guaranteed by Article 12 (1((a) of our Constitution.

[44] Seventhly the question whether it would be a violation of the right to a fair trial where the Court recalls a witness in terms of section 167 of the Criminal Procedure Act or subpoenas a witness in terms of section 186 of the Criminal Procedure Act will depend on the particular circumstances of each case and the need for a fair trial. In terms of section 166 (2) of the Act, a witness called by the Court may, with leave of the Court, be cross-examined by the prosecutor and the accused person. After the Court has called a witness an accused person must be given and opportunity to reopen his or her case in rebuttal.

I am of the view, for the reasons provided below, that the State does not have an unqualified right to produce a new document or lead a new witness during any stage of this trial. If this is not correct it means that the State should in this particular matter be given free rein to present evidence even at this late stage. The accused persons pleaded to the charges on 15 March 2004.
The State has already led 349 witnesses. There were a number of delays during the course of this trial where the Court was precluded from hearing evidence on the merits of the case. This Court due to a tragic incident, had to relocate from Grootfontein to Windhoek during 2005, resulting in a delay of five months. During the course of last year due to an appeal lodged against the judgment of this Court in consolidated trials-within-a-trial this Court was unable to sit for period of six months. This is a very protracted trial because of the large number of accused persons charged (there are presently 113 persons, some died in detention), each one of whom is facing 278 charges of very serious nature (high treason, murder, attempted murder, sedition, public violence and malicious damage to property, to mention some). As was submitted by counsel, from the discovery made on 10 September 2008 it is clear that the State has a least 523 witnesses at their disposal, and this Court is often being reminded by counsel that this case is not your ordinary run of the mill criminal case. I agree with counsel on this point.
This Court is not privy to how many more witnesses the State intends to call before closing its case. How many unforeseen future delays there will be is not known. What is to be expected though, is that when the State closes its case, defence counsel will in all probability launch an application for discharge in terms of section 174 of the Act in respect of some of the accused persons. Those accused persons who will be placed on their defence have the right to testify and the right to call witnesses to testify on their behalf. A question often asked and for which there is no answer is this: When will this trial be finalised ?

[47] Mr Kauta estimated that about 40 witnesses who had already testified would need be recalled in the event of this Court allowing the State to lead the evidence of these new state witnesses and hear evidence in respect of the other additional statements. Even if this is not an accurate estimation one is faced with the real possibility that in such a scenario this trial would become even more protracted. Furthermore should this Court allow the State to lead the evidence of these new witnesses there exist a real possibility that where in future whatever evidence is being dug up during this continuous investigation this Court has to bear with the testimonies of those surprise witnesses irrespective of the nature of those testimonies and the impact it may have on the defence of accused persons.

[48] It will depend on the facts and circumstances of each case whether a decision to exclude evidence obtained during a trial in consequence of continuous investigations, is justified or not.

[50] The State has an onus in criminal proceedings to show beyond reasonable doubt that the admission of evidence will not ultimately render the trial unfair.

[52] The constitutional rights that would be violated should these witnesses be allowed to testify are the right of an accused person to be released should the trial not take place within a reasonable time (Article 12 (1)(b) ), the right to cross-examine witnesses and the right to adduce evidence (Article 12 (1)(d), and the right to be afforded adequate time and facilities for the preparation and presentation of their case
(Article 12 (1)(e) ).

[53] Ninethly, in this regard I shall accept that defence counsel did not object to the reception of the evidence at that stage of the trial since the accused persons had not been prejudiced by the admission of such evidence.

excluded.

[55] It is trite law that the judgments of other jurisdictions may have persuasive authority. This is particularly true in the present instance where no Namibian Court was previously required to rule on the issue of debarring a party from presenting evidence.

[57] This Court was in support of the objection, referred to "the risk of contamination" in respect of the statements discovered at this stage. The State did not specifically counter this submission. In a nutshell it relates to the vast media attention attracted by this case from its inception. Evidence has been disseminated on a continuous basis by way of the printed and electronic media. In addition it must be added that hundreds of state witnesses had already testified, the majority whom hail from the Caprivi area, the same area where the majority of the new witnesses reside.
[58] Even though there is no evidence to this effect before this Court, I am of the view, having regard to these factors, that there is a real risk that these new statements may contain allegations based on information obtained by means of secondary sources and not from the witnesses' original knowledge or memory of incidents referred to in these statements. I agree with counsel that it may be virtually impossible for this Court given these circumstances, to distinguish between original knowledge and "implanted" knowledge. This in turn creates a very real trial related prejudice, and the impression (as submitted by counsel) is created that the State patches up its case as gaps are discovered.

[59] I have indicated earlier that there is no explanation why this Court must at this very late stage admit the evidence based on these statements (i.e. new as well as additional statements) and furthermore there is no explanation why these statements could not have been provided much earlier during the course of the trial.

[60] The right of the State to present evidence obtained by way of continuous investigations during the course of this trial must be limited by the right of accused persons to a fair trial.

[61]    These   are   the  reasons  why  this   Court  made  the  following  ruling  on

24 February 2011:

1. That the objection in respect of witnesses Brogan Maumbwilo, Eustace Mukela Simataa, Precious Katangu Kabula, Chikoma Tryphinan Sezuni and Mukungu Mukungu Morricious is hereby upheld.

The State is however restrained from presenting evidence in this Court in respect of these witnesses founded on the contents of their additional statements.

HOFF, J

MR DUBE MR KRUGER MR NEVES MR NYONI MR KACHAKA MR McNALLY
Instructed by:						DIRECTORATE OF LEGAL AID