Court name
High Court
Case number
CC 15 of 2011
Case name
S v Hausiku and Others
Media neutral citation
[2011] NAHC 158


















CASE NO.: CC
15/2011






IN
THE HIGH COURT OF NAMIBIA


HELD
AT OSHAKATI


In
the matter between:


THE
STATE


versus


MPASI
JOHANNES HAUSIKU ….............................................FIRST
ACCUSED


HAINDERE
JOHANNES NDOKO …......................................SECOND
ACCUSED


HAUTA
KONSTANTIUS
….....................................................THIRD
ACCUSED


FRANS
MUNANGO MBAMBA …............................................FORTH
ACCUSED


ANDREAS
KARUPU NZARO …...............................................FIFTH
ACCUSED






CORAM:
TOMMASI J



Heard on:
26/05/2011 – 30/05/2011 -



Delivered on:
31/05/2011













REASONS:
TRIAL WITHIN A TRIAL



TOMMASI J:
[1] This court gave its ruling on 30 May 2011 that the statement of
accused 5 would be declared admissible as evidence against him in the
main trial and undertook to provide reasons for the ruling. What
follows are the reasons for the afore-mentioned ruling.








[2] The Defense
indicated during pre-trial proceedings that they object to the
handing in of extra curial statements made by all the accused,
on the basis that the accused were not advised of their right to
legal representation; the contents thereof were never read back to
them; and they were merely requested to sign the statement.








[3] The State
decided to tender only the statement made by accused 5 into evidence.
The defense, in addition to the objections raised during the
pre-trial conference held, also indicated that accused 5 further
objected on the basis that he was offered an improper inducement i.e
that he would be granted bail, to make the statement; and the that he
was not explained that he had right to remain silent. Given these
objections to the admissibility of the statement, the Court proceeded
with a trial-within-a-trial.








[4] The State
called the investigating officer who, at the time, was attached to
the Women and Child Protection Unit. She testified that she was
assigned the docket on 9 June 2008. By then the accused was already
arrested and in custody. She confirmed that she interviewed accused 5
on the same day. They were communicating in Rukuangali and they were
alone in the office. She testified that she introduced herself as a
police officer and proceeded to inform the accused of his rights in
accordance with the Judges Rules. She testified that these rights are
contained in what is commonly referred to as a J17 or a warning
statement. She followed the format and read it to the accused in
Rukuangali and she wrote down his response in English.








[5] She testified
that although Rukuangal was not her mother language, that: she had
been living in the Kavango area since 1995; she had informally
acquired the language; she spoke Rukuangali fluently and understood
it well; she fully understood the accused; and did not gain the
impression that he did not understand her. She testified in English








[6] She further
testified that she explained the right to legal representation to
accused 5 and over and above those explanations contained in the J17,
she also explained that he may apply for Legal Aid if he cannot
afford to pay for a legal representative by completing a form which
he could obtaining from the clerk of the court. According to her
accused 5 indicated that he understood what was explained to him and
indicated that he did not want a legal representative.








[7] She further
testified that she did explain his right to remain silent and
informed him that everything he said will be written down and that it
will be used in court. Accused 5 opted to give a statement in the
presence of the police officer. She read into the record those parts
which she read to the accused and his responses to the questions
posed. She testified that when she was done she gave the statement to
accused 5 to read and she also read it to him. He indicated that he
understood and signed the statement. According to her, the accused
appeared to be sober and normal. She denied making any promises to
the accused and she averred that he gave the statement voluntarily.








[8] Counsel for
the defense took issue in cross examination with the fact that no
interpreter was used. The main thrust thereof was that accused 5 did
not understand the investigating officer’s Rukuangali and that
he did not read and understand English well. The witness maintained
that the accused understood her and that there was no need for an
interpreter. The investigating officer stated that she determined
that the accused was in grade 10 and furthermore did not indicate to
her that he could not understand her. Counsel also raised the issue
of the youthfulness of the accused. The investigating officer
responded that she determined that the accused was 19 years old at
the time; that she considered him to be a major and therefore old
enough to give a statement without the assistance of a guardian.








[9] The Defense
called accused 5 to testify under oath. He testified that he was
taken out of the cell and the investigating officer just told him to
tell her what happened. She did not introduce herself. He told her
what happened. She did not explain that he had a right to have a
legal representative present and she did not tell him that he did not
have to say anything. When he was asked if she informed him whether
he has a right to remain silent he confirmed that she informed him of
his right to remain silent. He opted to remain silent. When asked why
he made a statement he answered that the investigating officer must
have written the statement out of her own head. He later stated that
he did make the statement but that he did so only because the
investigating officer informed him that the matter would be prolonged
and that he would not be granted bail if he does not make a
statement. Accused 5 also later admitted that he knew that she was a
police officer as she introduced herself to him.








[10] He testified
that his English was poor because most of his subjects are tutored in
Rukuangali. He was not given the statement to read nor was it read to
him. He testified that he did not even see in which language it was
written as he was just given a document to sign without knowing what
the contents thereof was. He denied that he was asked the questions
contained in the J17. Under cross examination accused 5 admitted that
he had English as a subject from grade 1 to grade 9 and that he
passed English each year. He confirmed under cross-examination that
he understood the investigating officer and that there was no need
for an interpreter. He also confirmed that she was writing down when
he told her what happened.








[11] It is trite
law that the onus rests on the State, to prove beyond reasonable
doubt that the statement complies with the provisions of section
219(A) i.e that it was made freely and voluntarily. In S v MALUMO
AND OTHERS (2) 2007 (1) NR 198 (HC)
it was held that the Judges'
Rules, though they are administrative directives to be observed by
the police, are not completely without effect; and that a breach of a
rule may influence eg the determination whether an incriminating
statement had been made voluntarily or not.








[12] S v KAPIKA
AND OTHERS (1) 1997 NR 285 (HC)
Mtambanengwe J at p288 –
289 H – J and A – C stated the following:



We live
under a constitutional regime like in South Africa, the relevant
provisions of whose constitution ie the bill of rights, are similar
to ours. In this connection many recent cases in South Africa have
emphasised the need for an accused person to be informed of his
constitutional rights and to be afforded the opportunity of
exercising the same at pre-trial proceedings. See for example S v
Mathebula and Another 1997 (1) SACR 10 (W) at 18-19; S v Agnew and
Another 1996 (2) SACR 535 (C); S v Melani and Others 1996 (1) SACR
335 (E) at 347e-h where Froneman J said
:



'The right to
consult with a legal practitioner during the pre-trial procedure and
especially the right to be informed of this right, is closely
connected to the presumption of innocence, the right of silence and
the proscription of compelled confessions (and admissions for that
matter) which ''have for 150 years or more been recognized as basic
principles of our law, although all of them have to a greater or
lesser degree been eroded by statute and in some cases by judicial
decision'' (in the words of Kentridge AJ in Zuma's case). In a very
real sense these are necessary procedural provisions to give effect
and protection to the right to remain silent and the right to be
protected against self-incrimination. The failure to recognize the
importance of informing an accused of his right to consult with a
legal adviser during the pre-trial stage has the effect of depriving
persons, especially the uneducated, the unsophisticated and the poor,
of the protection of their right to remain silent and not to
incriminate themselves. This offends not only the concept of
substantive fairness which now informs the right to a fair trial in
this country but also the right to equality before the law. Lack of
education, ignorance and poverty will probably result in the
underprivileged section of the community having to bear the brunt of
not recognising the right to be informed of the right to consultation
with a lawyer.'








[13] The first
question for this Court to determine, is whether the accused was
warned in terms of the Judges Rules and informed of his
constitutional right to legal representation.








[14] Counsel for
the State submitted that they succeeded proving beyond reasonable
doubt that the accused made his statement freely and voluntary and
that he was advised of his right to legal representation. Support for
this contention, he submitted, is the fact that accused 5 admitted
that he was informed that he has the right to remain silent; and it
would be improbable that the investigating officer would only explain
this right and not the others contained in the J17. He further
pointed out to this Court the contradictions in the evidence of
accused and argued that he was not a credible witness.








[15] Counsel for
the defense submitted that the fact that the procedure exist does not
per se mean that it was followed. She contended that the
accused from the outset raised the issue that his right to legal
representation was not explained to him and the statement was not
read back to him. She submitted that the accused, given his
youthfulness, was easily influenced to make a statement and to
believe the investigating officer when she promised him bail.








[16] She raised
the issue that the inconsistencies could have been the result of a
misunderstanding between the interpreter and the accused. The Court
at that point deemed it necessary to adjourn the proceedings for the
services of an official interpreter and for him to evaluate whether
the the translation of the casual interpreter from Rukuangwali into
English and vice versa was accurate. The Court called the
official interpreter as a witness to testify under oath and he
confirmed that the translation was done correctly.








[17] Counsel for
defense also conceded that there was no legal requirement for a legal
guardian to be present but maintained that, because of his
youthfulness, the accused was easily influenced by the investigating
officer conduct.








[18] The accused
admitted that he was advised of his right to remain silent. His
testimony was that he opted to remain silent and only decided to make
the statement when he was informed that his case would be prolonged
and the promise was made by the investigating officer that he would
be granted bail. Whether or not the right to legal representation was
explained and whether or not there was an improper inducement
requires of this Court to evaluate the evidence placed before it .








[19] With regard
to the allegation of an improper inducement offered by the
investigating officer, I would firstly deal with the undesirable
practice that the investigating officers take down the statements of
an accused and to act as an interpreter at the same time. This
practice has to be strongly discouraged.
S
v NZAMA AND ANOTHER 2009 (2) SACR 326 (KZP),
WALLIS
J
at p338 G-H stated the following in respect of confessions:



Our
courts have over many years repeatedly drawn attention to the
undesirability of having a confession taken by a police officer in
the same unit as the investigating officer. They have equally
deprecated the use, as interpreters, of officers in the same unit as
the investigating officer, and the person taking the confession. The
undesirability of taking a statement in the presence of the
investigating officer, however remote, and other policemen, is
manifest. The reason is, as Jansen JA pointed out, that these factors
provide fertile soil in which the accused can plant a seed of
suspicion against the conduct of the police, and the propriety of
their behaviour in obtaining the confession. Such an environment can
also, as the learned judge pointed out, plant suspicion in the mind
of the accused that he or she is not free to speak their mind and
tell the person recording the confession of misconduct or inducements
brought to bear upon them in order to compel the confession
.”








[20] Although the
above relate to confessions, the same, to my mind would apply to
statements. It was held in that case that the above- mentioned
practice was not per se to be irregular. In this instance, the
fact that the investigating officer took down the statement and was
also the interpreter, made it possible for the accused to plant a
seed of suspicion against the conduct of the police. It however
remains this Court’s duty to evaluate the evidence to determine
whether there is any truth in the allegation of an improper prior
inducement.








[21] The disputed
facts in respect of the admissibility of the statement are whether or
not the right to legal representation was explained and whether or
not the investigating officer offered an improper inducement to the
accused to make the statement. In essence there are two mutually
destructive versions of what transpired in the office between the
investigating officer and accused 5. In S v Janse van Rensburg and
Another
2009 (2) SACR 216 (C), Moosa J at p202, C – D,
states the following:



Logic dictates that,
where there are two conflicting versions or two mutually destructive
stories, both cannot be true. Only one can be true. Consequently the
other must be false. However, the dictates of logic do not displace
the standard of proof required either in a civil or criminal matter.
In order to determine the objective truth of the one version and the
falsity of the other, it is important to consider not only the
credibility of the witnesses, but also the reliability of such
witnesses. Evidence that is reliable should be weighed against the
evidence that is found to be false and in the process measured
against the

probabilities. In the
final analysis the court must determine whether the State has
mustered the requisite threshold - in this case proof beyond
reasonable doubt.”








[22] The accused
appeared, despite the fact that he achieved an educational level of
at least up to grade 9, to be unsophisticated. Despite this fact the
Court was unable to ignore the obvious discrepancies in his
testimony. What became apparent is that the accused understood the
investigating officer when she spoke Rukwangali. He furthermore first
denied that she introduced herself and afterwards admitted that she
indeed introduced herself. He first denied that she explained that he
did not need to make a statement and later upon being prompted about
why he eventually made a statement admitted that the investigating
officer did explain this right to him. It appears that he was not
prepared to, of his own volition, concede that some of the procedure
during the interview was followed. I would have to agree with counsel
for the State that it could not reasonably possibly be true, that the
investigating officer would explain some of his rights and not the
other.








[23] When he first
narrated what transpired on his own he testified that the
investigating officer asked him to tell her what happened and he did
so. No mention was made of any promises. It was only after being
prompted by his counsel that he indicated that he opted to make a
statement due to the promise made by the investigating officer. This
creates the impression that it was not part of what actually
transpired but an afterthought.








[24] The
admissions made by the accused in terms of the fact that the
investigating officer introduced herself and that she warned him of
his right to remain silent, lends credence to the testimony of the
investigating officer that she indeed explain his right to legal
representation.








[25] Accused 5’s
evidence was unconvincing and improbable and is rejected as being
wholly untruthful and incapable of credence. I am satisfied that the
investigating officer warned the accused in accordance with the
Judge’s Rules and informed him not only of his right to legal
representation but also informed him that he could apply for legal
aid. The accused version of the promises made by the investigating
officer that he would be granted bail is nothing more than an
afterthought.








[26] The issue
whether or not she properly recorded what was said has no bearing on
the admissibility of the statement. It is therefore not necessary for
me at this point, to determine whether the accused understood the
statement that was written in English. The weight to be attached to
the contents of the statement will be determined in the main trial
and I shall therefore not deal with this issue in the
trial-within-a-trial.








[27] I was
satisfied that the State had proven beyond reasonable doubt that
accused 5 made the statement freely and voluntary and that his right
to remain silent and the right to have a legal practitioner present
were explained to him. I therefore ruled that the statement of
accused 5 be declared admissible as evidence against him in the main
trial.


















________________


Tommasi
J




13