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Tshekiso v The State (Criminal Appeal No 33 of 1996 ) [1997] BWCA 6; [1997] B.L.R. 22 (CA) (17 January 1997)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No 33 of 1996
High Court Criminal Case No. 1 of 1996
In the matter between:
BUBI TSHEKISO
Appellant
vs.
THE STATE
Respondent
Mr. H. Sikhakhane for the Appellant Mr. R S. Busang for the State
JUDGMENT
CORAM: Amissah, P. Steyn, JA. Lord Cowie, JA.
STEYN. JA:
The Appellant was charged and convicted of murder in the High Court. Extenuating circumstances were found to be present and he was
sentenced to 10 years imprisonment. Appellant now appeals against his conviction.
It was common cause before this Court that the only issue to be decided was whether the Court a quo was right to hold that the State had established that a confession handed in at the trial had been made freely and voluntarily
without any undue influence having been exerted upon the Appellant when he did so.
It was also common cause that the only basis upon which the voluntary nature of the statement could be challenged was that the confessing state of mind of the Appellant could have been improperly induced by the unlawful
arrest and detention of his mother in the circumstances
2
established by the evidence. In order to adjudicate upon this issue it is necessary to give an outline of the relevant evidence at
the hearing.
The deceased had been stabbed to death on the evening of the 20th of May 1995. Two days later, at 8 o'clock in the morning of the 22nd of May 1995 the Appellant's mother was arrested. Sometime that day, it is not clear when, on learning that the police were looking for him, Appellant presented himself at the police station. This was the same venue at which Appellant's mother was already being detained.
Sometime during the course of that day Appellant made a statement to the police. The investigating officer was of the view that this
statement amounted to a confession and that the Appellant should be taken to a magistrate to have his statement formally recorded. This was duly done on the next day i.e. the 23rd of May 1995.
The arrest and detention of Appellant's mother (she) was the subject of extensive examination both at the trial within a trial and in the trial proper. The evidence established the following:
1.
As indicated above, she was arrested at 8:00 a.m. on the 22nd of May 1995, She was released at 15:00 on the 23rd of May. She was detained
in the police cells during the night of the 22nd/23rd May.
2.
She was arrested before the Appellant. Indeed the investigating officer testified that he was with Appellant's mother when Appellant
presented himself at the police station. She was released only after Appellant had made his statement to the magistrate, i.e. she was detained even after Appellant had made a statement to the police which was construed
as being a confession. This statement was made before lunch on the 22nd May.
3.
She was arrested and detained without due cause. In this regard it is instructive to examine the evidence of the investigating officer concerning the reasons why he arrested Appellant's mother.
3.1. In his evidence in chief the investigating officer, Sergeant Nduse said that he arrested her on suspicion that she might know
3
"something about the death of the deceased".
3.2.
Later in cross-examination he says "I arrested the mother because I was investigating the crime."
3.3.
Shortly thereafter when he was pressed he states that 'It was necessary to arrest when you have suspicions that may be the mother
was involved".
3.4.
When asked what the purpose of arresting the mother was he says: "the purpose of arresting is not to put pressure. It is to interrogate. Not beating but asking questions."
3.5.
When he was again and finally asked why he arrested Appellant's mother. Nduse says: "I arrested the accused's mother on suspicion of what caused the accused to kill the deceased as all along
the mother was with the accused at the bar."
Even more instructive is the evidence of Mr. Nduse concerning the circumstances surrounding the detention of Appellant's mother and the role her presence played in the process. These are the following:
4.1.
As already indicated above, she is arrested and taken to the police station prior to the apprehension of the Appellant and he is confronted by this fact when he arrives at this venue;
4.2.
She is detained until the following afternoon on no acceptable grounds whatsoever;
4.3.
The investigating officer's unconvincing explanation concerning the reasons for her arrest and detention, coupled with the absence of any acceptable reason for this course of conduct, gives considerable legitimacy to the contention that she was a coercive card in the cards the police was holding against the Appellant.
4.4.
The above view is compounded by the fact that not only is the mother arrested and detained, even after the Appellant is alleged to have made a statement, but is taken, together with the Appellant to accompany the party to the magistrate when Appellant is presented to the judicial officer for the purpose of making a statement. It should be noted that prior to doing so, Nduse says that after the Appellant had informed him of his involvement in the fracas, he asked the mother to listen to his statement "so that she could hear what the accused was saying to me." When asked "why should the mother come to hear?" He replies "So that the mother could ascertain that he does not change the statement
in future" Mr. Nduse was asked what the purpose was "of taking the
4.1.
4 mother with the accused to the magistrate?" He replies as follows:
"So that the accused person should not change and say he was induced by the police. It was also to make sure that the accused does not change his mind and say
that he was induced by the police.
This is the more extraordinary in view of the fact that the investigating officer knows that privacy is of the essence of ensuring the inviolability of a confession. Taking Appellant's mother to the magistrate offended also against this principle. It reinforces the probability that he intended to use her presence to ensure Appellant confessed.
Whilst not all the evidence cited above was given in the trial within a trial, the last citation is from the record of that part of the proceedings. It was in my view a clear signal to the Court that the investigating officer viewed the detention of the Appellant's mother as a factor which could induce the Appellant to make a confession to the magistrate. Although he denies that he overtly did so, I have no doubt that on the facts before the court a quo there was a very real possibility - if not a probability - that this was the intention. It follows that if this was the case, the Appellant needed to be and was in feet deliberately influenced to confess and that the mother was used as a pawn to secure the
"co-operation" of the Appellant. Indeed, on the basis of the last above cited portion of the record, the Court a Quo should diligently have pursued this aspect of the mother or at least have applied its mind to the question of the possible inducing role this circumstance could have played and should have made a firm finding thereon.
Gittings J deals with it thus:
I do not know why Sergeant Nduse took the accused man's mother to the Judicial Officer on the 23rd of May 1995. It seems to me an odd thing to do, particularly bearing in mind, as Mr. Sikhakhane said,
that she could not have been even remote a suspect by the 23rd of May 1995 as the Accused was alleged already to have made a full confession of killing the deceased to Sergeant Nduse on the 22nd of May. I would say
that it was not a proper thing to do and in this particular case I think it was a foolish thing for Sergeant Nduse to do."
5
This statement begs the question. It isn't whether it was foolish or not, it is whether this conduct could reasonably have induced a confessing state of mind in the Appellant. I am certain that had the learned judge carefully considered the evidence referred to above he would have entertained the same serious doubts this Court has concerning the voluntariness of the confession Appellant subsequently made to the magistrate.
The trial judge was right to reject the manifestly false evidence of the Appellant that he wasn't cautioned by the magistrate, that he did not realise he was being taken to a magistrate, that the door was open and that could see the policeman's knees through the door. The falsity of this evidence could also legitimately have been put in the scale when adjudicating upon the issue of the admissibility of the statement.
However, the highly questionable - indeed unlawful conduct of the police in arresting the Appellant's mother and detaining her without cause, were overriding considerations which did not depend specifically on the credibility of the Appellant, but on the evidence submitted by the prosecuting witness himself.
It is also correct that when asked by the magistrate whether he was induced to make a confession the appellant denied that he had not been so persuaded. However, in view of the fact that his mother had accompanied him to the magistrate and she and the investigating officer were waiting for him outside, less weight than usual should be accorded to this fact.
I believe that the confession was wrongly admitted. It was not proven to have been made
freely and voluntarily. Indeed, the probability is that it was induced coercively by arresting
Appellant's mother and using her arrest and continued detention to secure a confession from the
Appellant. It accordingly did not comply with proviso (i) to Section 228 (1) of the Criminal
Procedure and Evidence Act (Cap 08:02). It was not proved "to have been freely and voluntarily
made
and without being influenced thereto".
The State quite rightly conceded that it could not rely on the other testimony to sustain
a conviction. The only witness who gave evidence linking the Appellant to the crime proved to be highly intoxicated at the time and was clearly unreliable.
For these reasons the conviction cannot stand. The Appeal succeeds. The conviction and
sentence are set aside.
Delivered in open Court at Lobatse this 17th day of January 1997.
J.H. STEYN
Judge of Appeal
I Agree
I agree
A. N. E. AMISSAH President
LORD COWIE
Judge of Appeal
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