You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1996 >>
[1996] BWCA 25
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Kwae v The State (Criminal Appeal No. 32/95 ) [1996] BWCA 25; [1996] B.L.R. 159 (CA) (5 February 1996)
.PDF of original document
.RTF of original document
1
IN THE COURT OF APPEAL OF BOTSWANA HOLDEN AT LOBATSE
Court of Appeal Criminal Appeal No. 32/95 High Court Criminal Trial No. 3/94
In the matter between:
GAOLATLHE KWAE
Appellant
and
THE STATE
Respondent
Mr. B.G. Toteng for the Appellant Miss P. Solomon for the Respondent
JUDGMENT
Delivered on 5th February, 1996
CORAM; AMISSAH, J.P AGUDA J.A. LORD WYLIE, J.A LORD COWIE, J.A. HOEXTER, J.A.
AMISSAH J.P.,
This appeal first came before this Court constituted by three of its members. After argument, it was decided that the case involved a point of law of sufficient importance to warrant a hearing by a full Court of five judges. The parties were accordingly informed and invited to submit Heads of Argument on the point of law in issue as well as on any other submissions they wished to make. The parties complied; arguments were heard enabling the Court as presently constituted to give full consideration to the appeal. We now give our judgment.
The appellant, GAOLATLHE KWAE was convicted by the High Court presided over by Gaefele Ag. J on four counts of murder and
I
2 one count of arson. The learned judge finding no extenuating circumstances for the four murders, sentenced the appellant to death. It is from these convictions and sentence that the appellant has brought this appeal.
The case which the prosecution made on the charges was that the appellant set fire to the house of one Mmangaka Phitlho in Old Naledi, Gaborone in which five of the children of Phitlho were sleeping on the night of 12 September, 1993. Four of the five children died from the terrible burns suffered as a result of the fire. One of them was burnt to death and the other three died in hospital a few days later. The death of each of the four children was the subject of one of the four murder charges.
The appellant and Phitlho were formerly lovers. But they broke up when Phitlho decided to leave him because, in her view, the appellant was making unfounded charges of unfaithfulness and promiscuity against her. Thereafter, the appellant resumed a friendship with a former lover with whom he lived and Phitlho lived with her five children in the house destroyed by the fire on the fateful night. That night, Phitlho was herself not sleeping in her house but in the house of the new lover she had found. Her five children were in her house alone.
The appeal revolves round on one point and one point only, namely, whether the prosecution proved beyond reasonable doubt that a confession statement made by the appellant to a judicial officer which was admitted in evidence and was relied upon by the trial judge in convicting the appellant, was voluntary and free, as required by the law. The appellant contends that it was not; that the circumstances of its admission were unduly prejudicial
3
to him. Accordingly, he invites us to look into this complaint, which should lead us to hold that as a consequence of the wrongful admission of the statement he had not had a fair trial, and to quash the convictions and sentence.
The question we have to examine therefore, is whether the confession statement admitted at trial was free and voluntary. If it was, that ends the matter. If it was not, we may have to enquire further, whether without the confession statement admitted, the conviction should stand.
Section 228(1) of the Criminal Procedure and Evidence Act
[Cap 08:02] provides that:
"228. (1) Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any person accused of such offence (whether before or after his apprehension and whether on a judicial examination or after commitment and whether reduced into writing or not), be admissible in evidence against such person:
Provided that -
(i) such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been influenced thereto,
(ii) if such confession is
shown to have been made
to a policeman, it
shall not be admissible
in evidence under this
section unless it was
confirmed and reduced
to writing in the
presence of a
magistrate or any
justice who is not a
member of the Botswana
Police Force
"
I omit proviso (iii) because it is not relevant to this case. A confession made by an accused person, whether before
4 or after he was apprehended, whether it was on a judicial examination or after he had been committed to stand trial and whether or not the confession is in writing is admissible against him at his trial, if the confession is proved to have been freely
and voluntarily made at a time when the accused is mentally sound and sober and without being unduly influenced to make it. The authorities show that a statement is not made freely or voluntarily if it is made as a result of an inducement. And inducement includes the use or threat of force compulsion or promise of material gain: See Mosotho Masina and Another v. The State [1983] BLR 239; Joseph Mokwena v. The State Criminal Appeal No. 2/90, judgment delivered on 3 July, 1990 (unreported). If the statement is not free or voluntary, it is inadmissible. But section 228(1) (ii) shows that even a confession statement which is freely and voluntarily made, if made to a policeman is still inadmissible in evidence unless the statement so made is confirmed and reduced into writing in the presence of a magistrate or a justice who is not a member of the Botswana Police Force. That must mean that the statement initially made to the policeman becomes admissible in evidence if it is confirmed and reduced into writing, not necessarily by, but in the presence of, a magistrate or a judicial officer who is not a member of the Police Force. As I said in the case of Joseph Kqaodi v. The State Criminal Appeal No. 31/95 judgment in which was delivered at this session (unreported), it seems to me that this stipulation is made in order to reduce, if not wholly eliminate, opportunities for disputes over the voluntariness of confession statements made to the police. Challenges are often
5
made by accused persons who have given statements to the police
that the statements, if incriminatory, were made because the
makers were beaten or had other forms of physical violence
applied or promises made to them. Most of these allegations have
been found by trial courts to be unfounded; but some have been
found to be true. To discourage police officers inclined to the
use of such illegal methods and to minimise the occasions that
accused persons inclined to levelling false allegations of use
by the police of improper inducements to secure confessions, the
law has introduced this salutary safeguard of a confirmation of
a confession statement to a policeman in the presence of a
magistrate or judicial officer as a condition of admissibility.
Another relevant section of the Criminal Procedure and
Evidence Act designed to achieve the same purpose as section
228(1) proviso (ii) is section 231. It enables the police to
take a person in their custody to a judicial officer for a
statement to be recorded. Section 231 provides that:
"231 (1) A policeman may take or cause to be taken any person lawfully detained in his custody before a magistrate or any justice who is not a member of the Botswana Police Force and the magistrate or justice shall give that person the opportunity to make a statement to him in respect of any offence that person is alleged to have committed and, if that person elects to make a statement, the magistrate or justice shall record the same in writing in the language in which it is made or in some other language into which it is duly translated while being made.
(2) Before any person makes a statement in terms of this section, the magistrate or justice shall caution him to the effect that he is not obliged to say anything unless he wishes to do so but that should he elect to say anything it will be recorded in writing
and may be used in evidence either for or
against him.
(3)
Every statement recorded in accordance
with this section shall, whether it amounts
or does not amount to a confession of the
commission of any offence, be admissible in
evidence either for or against the maker
thereof at any subsequent trial or
preparatory examination in respect of any
offence, to the extent that the contents
thereof are sufficiently relevant for the
purpose of the trial or preparatory
examination.
(4)
Notwithstanding subsection (3), a
statement recorded in accordance with this
section shall not be admissible in evidence
against the maker thereof unless it is
proved to have been freely and voluntarily
made by him in his sound and sober senses
and without having been unduly influenced
thereto."
There are differences in the two provisions. For example, section 228 confines itself to confessions by accused persons, while section
231 applies not only to confessions but also to admissions or other statements which could be admitted in evidence at a trial for
or against the maker. Section 228 speaks of a confession made to a policeman being confirmed in the presence of a magistrate or judicial
officer whereas Section 231 does not confine itself to confirmations of statements made but also covers statements, whether confessions,
admissions or not, made in the first instance before the magistrate or judicial officer. Section 231 speaks of a person lawfully
detained in the custody of the police, while Section 228 envisages that the confession to the policeman may be made by a person before
apprehension, not in custody. But in both cases, if the statement made amounts to a confession, the statement must be freely and
voluntarily made. And although section 231 expressly
I
1
7 states that the policeman "may take or cause to be taken" the person in his custody before the magistrate or judicial officer and section 228 makes no such provision, in order that the confirmation of the statement made to the policeman may be obtained, the presence of the judicial officer must somehow be secured. That implies either that the person who made the confession must be physically taken to the judicial officer or the judicial officer must be invited to come to witness the confirmation of the confession made. Having regard to the relative status of the policeman and the judicial officer it would seem that the usual course would be for the policeman, even though the section under which he is operating is section 228, as he seeks a confirmation of a confession already made, to take or cause to be taken the accused person before the judicial officer just like the person in lawful custody who is taken under Section 231. Section 231 makes no reference to a statement already made to the police before the maker is taken to the police, but logic and practical sense dictate that he should have given an indication of an intention or wish to make a statement. Therefore, although there are differences in the legal coverage of the two sections, the modality of getting the person affected by sections 228 and 231 have converged and the same principles and practice for establishing the freedom or voluntariness with which a confession statement is made or confirmed under both sections, if not found in the statutes, have been developed and applied uniformly.
Under both sections, the key person whose conduct and evidence is crucial in determining the voluntariness or otherwise
8 of a confession statement is the judicial officer. He must independently establish that the statement being confirmed or made to him by the accused, whether before or after charge, is free and voluntary. As it is possible that the police who produce the accused have used on or offered an unlawful inducement to the accused person, the judicial officer must determine that the effect of the inducement is not still operating on the mind of the accused: See: Masina and Another v. The State [cited above]. This Court has also given guidance as to the kind of questions which the judicial officer should ask, the answers to which would assist him in making a determination of the voluntariness of the intended confession of the accused: See Joseph Mokwena v. The State [cited above]
In the present case, the evidence is that early in the morning of the day after the fire which caused the death of the four victims, the subject of the four murder charges, the appellant gave himself up to the police. The investigating officer Detective Inspector Richard Baraedi (PW4) who later found the appellant in custody, informed the accused of the nature of his, Baraedi's, investigation and upon being so informed the appellant made a statement which amounted to a confession. If that was the case, the contents of the confession would be inadmissible unless the confession was confirmed in the presence of a judicial officer. Detective Inspector Baraedi instructed two police officers, Detective Inspector Letsholo and Detective Constable Sametse to take the appellant to the Magistrate.
Obviously, that was in order that the appellant may confirm his statement before a judicial officer, one Mr. Mazonde. The
9 police officers brought back the appellant without the latter having made a confirmatory or other statement to the judicial officer. That was on 13 September, 1993. On 16 September, 1993, the appellant was again taken to the same judicial officer by Detective Inspector Baraedi himself. This time, the appellant made a confession statement.
The circumstances which led to the appellant's version of that dispute forms the kernel of his objection to the admissions at the trial of the confession recorded by Mr. Mazonde. The appellant's position is that he made the confession statement to the judicial officer on the second visit only because he was told by Detective Inspector Baraedi that he had to make a statement to the judicial officer whether he liked it or not. If that is correct, it would no doubt be some form of compulsion which could constitute an unlawful inducement rendering the confession inadmissible. The police version, given by Detective Inspector Baraedi, was that on 13 September when he had returned from the judicial officer he enquired from the appellant what happened before the judicial officer and the appellant told him that he had told the judicial officer that he, the appellant, had already submitted a statement to the police. Baraedi then told the appellant that the statement which the appellant gave him could not be used at the trial, at which explanation the appellant had said that he was not aware of that and was now prepared to make a statement. Baraedi, when asked in court, added that he himself had not explained that position to the appellant before the appellant went to the judicial officer on the first occasion because he thought the judicial officer rather would inform the
V,
10
appellant. The difference in the position of the appellant on
this issue was indeed narrow, one might even say sophisticated.
But one version would render the confession made before the
judicial officer inadmissible, the other not. And the
admissibility of the confession depended on a determination of
the issue by the trial judge.
According to the evidence, on 16 September, that is the
second occasion when the appellant was delivered by the police
to Mr. Mazonde, the judicial officer, Mr. Mazonde, well aware
that the appellant had once before come to him without making a
statement, decided to satisfy himself that the appellant
genuinely wanted to make a free and voluntary statement. The
record of his encounter was made in the confession statement.
He first made this record in Setswana and translated it into
English. Both Setswana and English versions were tendered at the
trial. The English version shows that before the appellant made
his statement the judicial officer in an effort to determine
whether or not the appellant had come to make a free and
voluntary statement, asked several questions and received answers
from the appellant. The record of this is as follows:
"On the 16th day of September, 1993 in Broadhurst Magistrate's Court/Gaborone at 7.45 a.m. one GAOLATLHE KWAE was brought before me ENOCH N. MAZONDE Judicial Officer.
He appeared in his sound and sober senses. I took steps to ensure that no Police Officer was within sight or hearing of the said GAOLATLHE KWAE and that no one other than my interpreter was in my office. The said GAOLATLHE KWAE elected to speak in Setswana.
I informed him that I am a Judicial Officer and he was not obliged to say anything unless he wishes to do so and that whatever he said would be recorded in writing and might be used in evidence for or against him at his trial.
11
Asked whether having been so warned he still wishes to make a statement he replied I wish to record it.
I then asked the said GAOLATLHE KWAE the following questions which were duly interpreted to him and he answered as appear below:-
(1)
Q. What is the purpose of your visit to me?
A. I have come to record a statement about the people I killed.
(2)
Q.
When were you arrested? A.
On Thursday last week.
(3)
Q.
Where have you been in custody? A.
At Naledi Police Cells.
(4)
Q.
For how long have you been in custody? A.
A week.
(5)
Q. Was any promise or threat made to you, or
anything said to you to induce you to make a statement to me?
A. I have not been promised anything nor was I threatened or beaten.
(6)
Q. Have you received any injuries since your arrest? A. No.
(7)
Q. Because I recall that you once came before me on
Monday the 13th September 1993, and you had after the caution told me that you did not wish to make a statement, what has changed
your mind?
A. I did not understand properly until the police told me that I could record the same statement that I recorded with them.
(8)
Q. Are you certain no one threatened you, assaulted
you or promised you anything to induce you to make a statement?
A. No one ever threatened me in anyway or assaulted me or promised me anything to induce me to record a statement. They only explained
that I would be recording the same statement that I recorded with them.
(NOTE):
If any injuries are shown a note of their nature should be given) NONE VISIBLE.
12
[sic] Q. Have you previously made a statement?
A. Yes, I recorded it with the Police on Monday this week.
I then recorded the following statement made by the said GAOLATLHE KWAE in SETSWANA."
The part of the form showing that the statement was recorded through an interpreter was cancelled indicating that the judicial officer himself recorded the statement originally in Setswana. A comparison with the English translation shows that both were in the
same handwriting indicating that both the statement and its English translation were made by the judicial officer without the intervention of an interpreter. In any case the Setswana statement and the English translation are available for anyone who challenges
the translation to compare.
After the exchange between the judicial officer and the appellant, the appellant's confession statement was recorded. Mr. Mazonde, the judicial officer, gave evidence at the trial as PW1. His evidence-in-chief described the normal method for the taking of statements by him. Basically, it consisted of an exchange of question and answer in the form set out above. This form of questioning by judicial officers had been designed to meet the concerns of this Court expressed in Mosotho Masina and Another v. The State [cited above] and Joseph Mokwena v. The State [cited above] (unreported). This Court has expressed the view that an examination by the judicial officer should be in the absence of any police officer, and that the judicial officer should seek in his examination of the accused person to ensure that any
inducement offered by the police to make him repeat a statement taken by them was removed. In pursuit of that
13 objective questions especially question 5, on whether any promise or threat had been made or anything said to induce him to make the statement to the judicial officer, and question 6, whether he had received any injuries since his arrest, were thought likely to elicit from the accused person answers whether the statement about to be given was free and voluntary and that any prior inducement offered by the police had been removed. In this case, the judicial officer recalled that the appellant had come before him on 13 September, when after being informed by the judicial officer of the identity, and after being cautioned that he was not obliged to say anything unless he wished to do so, was asked whether he wished to make a statement and he replied, no, he did not wish to make a statement. Mr. Mazonde said that was the reason why he included questions 7 and 8 in his preliminary examination of the appellant on 16 September. After all that, the judicial officer was satisfied that the statement about to be made was free and voluntary, and he recorded it.
If I may recall the fact, the first question in the examination of the appellant had been what was the purpose of his visit to the judicial officer, and his answer was "I have come to record a statement about the people I killed." This question and answer was repeated by the judicial officer in evidence-in-chief.
That together with the answer to questions 5,6,7,8 which were also repeated in evidence-in-chief by the witness, Mr. Mazonde, satisfied him of the voluntariness of the statement. The witness was then asked by Counsel whether he wished to tender that appellant's statement in evidence. The exact questions and answers were:-
14
"Mr. Leinaeng: Would you now like to produce that statement as part of the evidence.
Witness: Yes I would tender both Setswana and English translation into Court as evidence.
By Court: Any objections?
Mr. Toteng: No objections.
Mr. Leinaeng: It is exhibit 6 and 7."
Having regard to the questions the judicial officer asked and the answers given on the statement form, and in view of the repetition of the recorded questions and answers in evidence-in-chief by the judicial officer, I think the judicial officer had done everything which he needed to do to show that the statement taken by him was free and voluntary and that no inducement, if any had been offered, by the police still operated on the mind of the appellant at the time he came to make his statement to the judicial officer or had come to an end. In the circumstances, if the appellant, who was defended by Counsel, had any objection to the averments made by the witness as to the free or voluntary
nature of the statement, it was for him to say so. It is settled law that the burden of proving the facts constituting the condition precedent to the admissibility of a confession statement lies on the person seeking to tender it in evidence: R. v. Jenkins (1869) LR1 CCR 187 at page 192. The case of R. v. Yacoob (1981) 72 Cr. App. R. 313, however, shows that even though in criminal cases the persuasive burden of proof beyond reasonable doubt in a case involving the competence of witnesses is borne by the prosecution, the defence bears a preliminary burden of raising the issue. I think that would apply also to a case involving a confession statement. The appellant said he
15 had no objection to the statement going into evidence. At this stage, the statement was admitted as part of the evidence. If it had been a jury case, the statement would be read to the jury. In this country the trial judge is both the judge of law and of the facts.
The question which arises in this case is whether after the admission of the evidence the trial judge is by law barred from raising mero motu, or entertaining a request by the defence to consider, the question of admissibility of the confession again at the trial. The question was posed by the course this trial took after the statement had been admitted. Counsel for the appellant
after a series of questions, suggested to the Court that because the accused had been told by Detective Inspector Baraedi that he
must make a statement to the judicial officer whether he liked it or not, this was an inducement as it constituted a form of compulsion, and that the appellant when asked by the judicial officer why he had come to make a statement had told the judicial officer about the police officer's order. Questions in cross-examination were interspersed with several exchanges between counsel and the judge, with counsel giving answers in support of that suggestion.
One of the points made by counsel at this stage was that though he had not objected to the statement when the judicial officer had tendered it, he had by implication given advance warning of his objection to it by not admitting the evidence of the judicial officer as stated in the Summary of Evidence for the trial when he formally admitted the evidence of several other such witnesses under Section 273 of the Criminal Procedure and
16
Evidence Act. Thereafter, his failure to object, though
regrettable did not create a bar to him raising the issue of
admissibility subsequently.
If I may pause for a moment to deal with an admission under
Section 2 73 of the Criminal Procedure and Evidence Act, the
section provides that:
"273(1) In any criminal proceedings the accused or his representative in his presence may admit any fact relevant to the issue, and any such admission shall be sufficient evidence of that fact.
(2) An admission made by an accused or his representative in his presence at a preparatory examination, which the magistrate presiding thereat noted on the record, may be proved at the subsequent trial of the accused by the production, by any person, of the documents purporting to constitute that record."
That is the section under which the evidence of witnesses, appearing on the summary of evidence whom the defence does not wish to call is usually admitted, thus enabling the prosecution to dispense with calling them. Of course, if the evidence of the judicial officer had been admitted under that section, that would have saved the prosecution from proving his evidence in whole. But if no admission is made under Section 273, it does not necessarily mean that a confession statement to be tendered by the witness is to be objected to. The defence may want the witness called to give his evidence and be cross-examined for any number of undisclosed reasons. When that evidence is given, the mere fact that an admission has not been made under section 2 73 does not mean that a confession statement which forms part of the
17 evidence to be given is objected to. It is for the defence, to object to the admission of the statement when that evidence is given
or to cross-examine on it, if he so desires.
The record does not state specifically that a trial-within-a-trial (the voir dire) was applied for by either the prosecution or defence.
But it shows that without recording reasons therefor, the judge decided to hold a trial-within-a-trial, obviously to determine the
question of the admissibility of the confession statement already admitted. On the voir dire, the first witness called was the accused himself. Counsel for the appellant who had also represented him at the trial has told us
that the appellant was called at this stage at his instance. After the appellant's evidence, in which he repeated the substance of
the suggestion made by his counsel in cross-examination no further witnesses were called by either the prosecution or defence but
the learned judge himself called Detective Inspector Baraedi and one other policeman who had on instruction taken the appellant to
the judicial officer to have his statement recorded. The appellant was not invited to rebut the evidence given by the policemen.
Submissions were made by counsel for both sides. The trial judge gave a ruling that the statement was admissible.
The conduct of the trial with respect to the admission of the confession statement has been attacked in several respects. The questions
raised by these attacks are:
(a)
whether the admissibility of a confession, the statement which had already been admitted in evidence was open to later examination
by the trial court to determine its admissibility;
(b)
whether such later examination could be through a
(a)
18
trial within a trial (the voir dire), and if so what form the voir dire should take;
(c)
whether the trial Judge was entitled mero motu to call police witnesses;
(d)
whether the failure to invite the appellant to give evidence in rebuttal of the police witnesses called was not such a fundamental
flaw as to vitiate the conviction.
With regard to the question regarding the status of a confession statement which had already been admitted in evidence without objection,
it appears that the law and practice which has developed in some Commonwealth countries, such as Ghana and Nigeria, is that once
the statement has been admitted whether with or without objection, even though the circumstances of its making may again be the subject
of cross-examination, such cross-examination has relevance not to the admissibility of the already admitted evidence, but as to the
weight to be attached to it. This approach has the support of logic because it neatly allocates the time for the determination of
admissibility and precludes the re-examination and disturbance of the question after it is determined; always, of course, subject
to an appeal.
Authorities from these jurisdictions are not readily available. But they must have been based on the legal position as existed in
England before the English decision of R V. WATSON [1980] 2 ALL ER 293. That earlier practice is encapsulated in the following statement of Archbold, Criminal Pleading Evidence & Practice [40th edition
published in 1979] in the paragraphs under 1378B, which said:
"13 7 8.B. Procedure Where the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is for the judge to determine
19
whether or not the prosecution have established that it was made voluntarily to the extent that the judge
is satisfied so that he feels sure about it,
The
proper course is for the judge to hear evidence upon the issue and then rule: R. v. Chadwick [1934] 24 Cr. App. R. 138; R.v. Moore [1972] 56 Cr. App. R. 373. Evidence upon this issue should normally be heard [on a (voir dire) and the ruling given in the absence of the jury (see R.v. Francis and Murphy [1959] 43 Cr. App R. 174) but a jury should not be asked to leave the court except at the request of or with the consent of the defence: R. v. Anderson [1929] 21 Cr. App. R. 178. Although it has been held that the defendant is not entitled to give evidence at this stage of the proceedings [see R. v. Baldwin [1932] 23 Cr. App. R. 62] , it appears that the judge may in his discretion permit him to do so if the justice of the case makes it desirable that this should be done: fR. v. Cowell [1940] 2 KB 49; 27 Cr. App. R. 191.
13 78a. In practice, the defendant invariably gives evidence where defence counsel thinks that it is desirable for him to be called.
Furthermore, section 1 of the Criminal Evidence act 1898 provides that "every person charged with an offence .... shall be a competent witness for the defence at every stage of the proceedings ...' It is submitted that this must include a * trial-within-a-trial'
. The Act was not cited in either R. v.Baldwin,ante, or R. v. Cowell
1378b. Objection to the admissibility of a confession should normally be taken when the prosecution starts to lead the evidence sought to be excluded; but there may occasionally be cases in which it is convenient for the judge to hear arguments as to the admissibility of the evidence in advance: R. v. Hammond [1941] 2 8 Cr. App. R. 84 at pp. 85-86; R. v. Murray [1950] 34 Cr. App. R. 203 at p. 206. If counsel for the defence intends to object to the admissibility of the confession the normal and desirable practice is for him to inform the prosecution of the fact before the hearing and counsel for the prosecution ought not to open that evidence: R. v. Cole [1941] 165 L.T. 125; R. v. Hammond; ante; R. v. Patel [1951] 2 ALL ER 29 at p. 30.
If the judge rules that the statement is admissible, defence counsel is entitled to cross-examine the relevant witness or witnesses as to the circumstances in which the statement was obtained, in the presence of the jury: R. v. Murray [1951] 1 KB 3 91. This is because the weight to be attached to the statement is
a matter for the Jury
to
consider and the
circumstances in which it was obtained are clearly
20
relevant." [emphasis supplied]
This no doubt was the law which the Commonwealth countries referred to earlier had followed.
Then there is the pronouncement of this Court, to which my attention has been drawn, obviously also based on the English position stated by the edition of Archbold referred to, which supports
that approach. In Sebanyatse Olesitse v. The State Crim. App. No.3 6/94 judgment given on 30 January, 1995, I made a pronouncement in a judgment concurred in by my brothers Justices Tebbutt and Cowie, that:
"As no objection was taken at the time the evidence was taken, the question of the trial judge having a trial within a trial,
or the voir dire, to determine the voluntariness or otherwise of the statement did not arise. Of course it was open to a defence after a voir dire has been held and the statement admitted to cross-examine the witness for the prosecution on the voluntariness of the statement again with a view to diminishing the weight to be attached to it. But this was not the course adopted in this case."
I must however say, that the point now put to us was not
fully argued before us then. The case was one which, from a
reading of the whole judgment, shows that the point about the
trial judge holding a trial within a trial was first raised on
appeal and depended on an incorrectly recorded sentence which
the ingenuity of Counsel for the Appellant had discovered on a
perusal of the appeal record. That comes out from the passage
of the judgment immediately preceding the pronouncement I made,
which was to the effect that:
"The statement was regularly taken by a judicial officer as required by section 231 of the Criminal Procedure and Evidence Act. The judicial officer gave evidence on the manner in which the statement was taken by him, detailing all the questions he asked the
21
appellant to ensure that the statement was voluntary. It was clear from everything he said in the course of his evidence that the statement was voluntarily made. The occasion for advancing the submission made by Counsel on appeal depended on one solitary sentence which runs contrary to the tenor of the whole evidence of the judicial officer which went unchallenged. The record of appeal shows that there was this sentence in the evidence of the judicial officer which said,
* I was given an explanation that the statement was not voluntarily given.'
Undoubtedly, having regard to the rest of the evidence of the judicial officer, and the fact that the statement was admitted in evidence without objection, this sentence was the result of a typographical error, with the word 'not' having been inserted by mistake."
That was what preceded the pronouncement now cited, which, in the circumstances, cannot be regarded as the definitive statement of this Court on the law under consideration. I think the pronouncement was correct in the context of that case. If upon the evidence then on the record, it is submitted, as I think it
was, for the first time on appeal that because of the one sentence which I identified as subject to a typographical error, the trial
judge should have gone into a trial within a trial to decide the voluntariness of the confession statement, my answer now as it was
then, would be no. But that does not preclude a re-examination of the question, especially as the arguments for and against the re-opening
of the question of admissibility were not canvassed as exhaustively as they have been in this case, and further as the present Court
is constituted by a bench of five judges instead of the ordinary three judge panel which constituted the Court in Sebanyatse Olesitse v. The State.
Further examination of the matter discloses authority from
22
other jurisdictions which, even though not binding on us, are of persuasive force, which cast doubt on the proposition that once a confession statement has been admitted without objection, the curtain falls on the issue of admissibility and that under no circumstances would it be re-opened. In R. v. Watson [1980] 2 ALL ER 293 at pages 295 and 296, Cumming-Bruce L.J. speaking for the Court of Criminal Appeal in England said:
"It is the duty of the judge to exclude from the jury's consideration evidence which is inadmissible. In the case of a written statement, made or signed by the accused, the judge must be satisfied that the prosecution have proved that the contested statement was voluntary, before allowing the jury to decide whether to act on it. Experience has shown that where the question of the voluntary character of a statement has been investigated and decided at a trial within a a trial it is only in very rare and unusual cases that further evidence later emerges which may cause the judge to reconsider the question whether he is still satisfied that the statement was voluntary and admissible. But where there is such further evidence the judge has power to consider the relevance of the admissibility of evidence on which he has already ruled.
We are not aware of any English decision directly on the point, but we accepted the reasoning expressed in a passage in a judgment of the Northern Ireland Courts-Martial Appeal Court in R. v. Murphy, [1965] Nl 138 at 143-144, delivered by Lord MacDermott LCJ which, though immediately concerned with a question of discretionary exclusion, is equally relevant to exclusion on the ground of
legal admissibility:
xIs the discretion spent once it has been exercised against the accused and the evidence has been admitted? We are not aware of any authority on this question, but on general principles we are of opinion that the Court's discretionary powers are not necessarily at an end when the relevant evidence has been admitted. Sometimes the true bearing
of evidence said to operate unfairly against an accused person may only appear clearly to do so when seen in the light of evidence adduced at a later stage of a trial and after the material objected to has become part of the record. To say
23
that it is then too late to consider the objection would, we think, be to run the risk of letting the technicalities of the situation
prevail over the requirement of justice. The admission of a confession as voluntary, on evidence heard in the absence of the jury, may be shown by subsequent evidence to have been clearly involuntary and therefore inadmissible. In such circumstances
we consider it would undoubtedly be within the province of the court either to instruct the jury to disregard the evidence as no
longer admissible or, in the absence of other evidence capable of sustaining the charge, to direct an acquittal. If this is right, we can see no reason for making a distinction between what becomes inadmissible after being thought admissible and what is seen to be unfair after an earlier view to the contrary. We are, therefore, of opinion that the discretion under discussion
may, in certain circumstances, properly be the subject of reconsideration"
The matter is discussed by Professor Cross in his Treatise on Evidence [5th edition, 1979, p.72] in which he refers to R. v. Murphy:
'The judge retains his control over the evidence ultimately submitted to the jury throughout the trial. Accordingly, if, having admitted a confession as voluntary on the evidence given in the absence of the jury, the judge concludes, in the light of subsequent evidence, that the confession was not voluntary, he may either direct the jury to disregard it, or, where there is no other sufficient evidence against the accused, direct an acquittal or, presumably, direct a new trial.'
[After reviewing the evidence, the judgment continues] We would emphasise that, though as a matter of law the judge has throughout a trial the responsibility of doing what is practicable to prevent a jury acting on the
evidence which the judge holds, or should hold, to be inadmissible, the occasions on which a judge should allow Counsel to invite him to reconsider a ruling already made are likely to be extremely rare. Judges should continue to discourage counsel from making submissions founded on a tenuous evidential
24 base." This constitutes a complete departure from the law as stated in the 40th Edition of Archbold. The current legal position as stated in R. v. Watson ought to be adjusted in its application to Botswana where the judge and jury in a criminal trial are the same. With respect to its consideration vis a vis the present case there is the complication that the case is a direct authority for a situation where there had been an objection to the reception of the evidence which had led to the holding of a trial-within-a-trial after which the judge had ruled that the evidence is admissible. In the case before us, there had been no such objection. Nevertheless, the principle which under-pins the decision is that the trial judge has control over the trial until its end and should not, in the interest of justice, be prevented from reviewing and reversing any decision which turns out later in the course of the trial to have been wrongly made. I think the reasoning in the
