S V Hausiku (CC 10-2013) 2015 NAHCMD 50 (10 March 2015)

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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

TRIAL –WITHIN – TRIAL

JUDGMENT

CASE NO.: CC 10/2013

In the matter between:

THE STATE

and

JOHANNES HAUSIKU ACCUSED

Neutral citation: S v Hausiku (CC 10/2013) [2015] NAHCMD 50 (10 March 2015)

CORAM: NDAUENDAPO, J

Heard on: 30 and 31 October 2014 3 to 20 November 2014

Delivered on: 10 March 2015

Flynote: Criminal Law – Trial within a trial – Admission of warning statement, plea in terms of s119 of Act 51 of 1977 and confession – Objection thereto – Rights not explained – Assaulted – Forced – No basis for objection – Admissible.

Summary: Criminal Law: The state sought to have a warning statement, a plea in terms of s119 of Act 51 of 1977 and a confession by the accused ruled admissible. The defence objected to that on the basis that the accused was not properly warned of his rights, was forced to say what he said and was assaulted. A trial within a trial was held and the court found that there was no basis for the objection.

Held further, that the accused’s rights were fully explained to him.

Held further, that the accused was not assaulted. The warning statement, plea in terms of s119 and confession ruled admissible

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ORDER

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1. The warning statement dated 8 June 2012 made to Sergeant Sikeso Veiko by the accused is ruled admissible

2. The plea in terms of s119 of Act 51 of 1977 of the accused on 24 September 2012 is ruled admissible.

3. The confession by the accused made to magistrate Swartz on 25 July 2012 is ruled admissible.

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JUDGMENT

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NDAUENDAPO, J: [1] The State applied for the warning statement, the plea in terms of s 119 of Act 51 of 1977 and the confession in respect of the accused to be admitted into evidence. The Defence objected to that on the basis that: (a) the accused was not properly warned of his rights; (b) He was forced or coerced to say what he said and (c) he was assaulted to make a confession.

The State called the below mentioned witnesses in support of the application. The summary of their evidence is as follows:

Gabriel Swarts

[2] He is employed as a magistrate and is currently stationed at Okahandja. In 2009 to 2013 he was stationed at Outjo as a magistrate. On Monday 23 July 2012, Detective Warrant Officer Hoveka came to his office and told him that the accused wanted to make a confession. He told Detective Warrant Officer Hoveka that he would give the accused two days to think about it and if he still wanted to make a confession then he could come on Wednesday. On Wednesday, 25 July 2012, Detective Warrant Officer Hoveka brought the accused and he told Hoveka to leave his office. He called the interpreter, Elias Liyando (Elias), a Rukwangali interpreter to be present and to interpret from English to Rukwangali and vice versa. He told the accused that he did not need to make the confession and that he is not guilty until proven guilty, apprised him of his rights, but the accused persisted in wanting to make a confession. He then took the pro-forma confession form and then informed the accused that he will put questions to him. He read the pro-forma to him and told him that he was a magistrate, explained to him his legal rights and that he could also be represented by a lawyer during the taking of the confession. The accused told him that he wanted to make a confession and he wrote it down. After that he went through what he had written down and he read it back to the accused who was satisfied with what was written down and he signed it. Himself and the interpreter signed it as well. He further testified that the accused appeared normal and had no injuries. The accused never complained to him that he was assaulted. He could also not observe any problem with the interpretation and he got the impression that the accused and the interpreter understood each other.

[3] Swarts further testified that on 24 September 2012, the accused, together with four other accused appeared before him in court during the s 119 plea (plea in terms of Act 51 of 1977). The Rukwangali interpreters were Abigal and Elias. The right to legal representation was explained and they were also asked whether they wanted to plead in the absence of their lawyer. Accused 5 (Johannes Hausiku) responded in the affirmative. Charges of murder, kidnapping and rape were put to him. Accused 5, pleaded guilty to murder and rape. He told the court that he understood the charges he was not threatened or forced to plead guilty and that he was pleading guilty freely and voluntarily.

Elias Linyando

[4] He is a casual interpreter for the Ministry of Justice since 2011. He obtained a grade 10 certificate and his mother tongue is Rumanyo. In 2012 he was a casual interpreter in Rukwangali at Outjo magistrate’s court. He is fluent in Rukwangali, he learnt it at school from grade 7 up to grade 9. Before that, he spoke it since he was young. His mother is Rukwangali and he started speaking it when he was small with his mother. On 25 July 2012 at Outjo magistrate’s court, he interpreted before magistrate Swartz for the accused from English to Rukwangali and vice versa. He and the accused understood each other. The accused never told him that there was a problem with his interpretation. The accused looked normal and had no injuries. He did not see that the accused’s teeth were knocked out nor did he complain to him of any injury. He further testified that he could remember that the accused was informed of his rights to legal representation, to remain silent, and he said that he understood it, but still wanted to give a statement. He also testified that after the statement was taken down, it was read back to the accused and he understood that and he signed it. He also testified that on 24 September 2012, he was the interpreter when the s119 (of Act 51 of 1977) plea proceedings occurred in court. He interpreted the proceedings in Rukwangali to the accused, his rights were fully explained and he pleaded guilty.

Sergeant Amukutu

[5] He is a Sergeant in Namibian Police for the past 14 years. On 8 June 2012 he was with Sergeant Kausiona when the accused was arrested in the location. Sergeant Kaushona spoke to the accused in Otjiherero. He explained the accused’s rights to him. He was then arrested and taken to the police station. At the police station, the accused was again apprised of his rights and interrogated. Nobody assaulted the accused in his presence.

Sergeant Kausiona

[6] Confirmed the evidence of Sergeant Amukutu that he arrested the accused on 8 June 2012. He spoke to the accused in Otjiherero as he (accused) could understand Otjiherero. He fully explained his rights to him. At the police station he again explained the rights of the accused. He denied having assaulted the accused nor did he see anyone assaulting him.

[7] Hans Damaseb testified that he is the head of Administration at Outjo police station. He never heard any complaint from the accused. He testified that on 25 July 2012, he was on duty and did not have anything to do with the accused. He denied having assaulted the accused.

[8] Detective Warrant Officer Hoveka is the investigating officer. He was not present when the accused was arrested, but spoke to him in Otjiherero when he was brought to the police station. He knew the accused as he was in the cells on another case before he was arrested on 8 June 2012. He testified that the warning statement was taken by Sergeant Sikeso who was based in Otjiwarongo. The accused was informed of his rights before the interrogation. He gave the information freely and voluntarily, no undue influence was exerted and he was in his sound and sober senses. On 19 July the accused came to him and told him that he wanted to make a confession, he informed the accused that the confession could be made to the magistrate. He told him to go and think about it before making a confession. On Monday 23 July he went to magistrate Swartz, and informed him that the accused wanted to make a confession. Swartz told him that the accused must be given time to reflect on his decision to make a confession. On 25 July 2012, the accused was normal and he took him to the magistrate to make a confession. He denied having assaulted the accused. He did not see any injuries on the body of the accused.

Detective Sergeant Sikeso Veiko

[9] He testified that he was stationed at Otjiwarongo police station. He got a message that he must go over to Outjo to assist in taking a warning statement from a Rukwangali speaking accused. He arrived at Outjo police station and found the accused talking to Hoveka in Otjiherero (he understands a bit of Otjiherero). He met with the accused in the office of the criminal investigation division. He explained to the accused the charges of rape and kidnapping. He warned him that he was not forced to give a statement, apprised him of his rights. He also explained to him how to go about obtaining a legal aid lawyer. The accused informed him that he did not need a lawyer. The statement was given freely and voluntarily, he was in his sound and sober senses. After recording the statement he read it back, interpreted to the accused and asked him whether there was any problem with the statement and he said none. He then signed it.

[10] He further testified that on 10 June 2012 he returned to Outjo and took a statement under oath from the accused relating to the murder case. He again apprised him of his rights. After writing the statement it was interpreted and the accused signed it.

Johannes Hausiku

[11] He testified that he was arrested at home by Sergeant Kausiona. He grabbed his arm and pulled him to the car and taken to the police station. The reason for his arrest was not explained nor his rights. He was locked up in the cells until Sergeant Sikeso Veiko arrived. Sikeso spoke to him in Rukwangali and told him that he was arrested for murder, rape and abduction. He asked him the names of his friends and as he was talking he was writing down. He told him to sign the statement only days after it was written. After he signed the paper they handcuffed him, both hands at the back. It was Kausiona, Damaseb and Gariseb. They put a plastic bag over his head. They assaulted him, hit him on the jaws and he lost two teeth. Hoveka took him to hospital where he was hospitalized for two days. He denied having told Detective warrant officer Hoveka in July that he wanted to tell the truth. On 25 July 2012, he was taken to the office of the magistrate. On his way he met with Sikeso who told him to admit guilt and then he will be admitted to bail. At the office of the magistrate, the interpreter, Linyando, was interpreting and he was mixing Rukwangali and Rumbukushu vernacular and he could not understanding it well. The magistrate said to him not to be afraid. He said it is fine and that is all what they spoke. He further testified that he told the magistrate that he wanted to make a statement. The magistrate asked him whether he wanted a lawyer or give a statement. He said he will give a statement because of the fear that he would be assaulted at the station and was also told what to say to the magistrate by Sergeant Sikeso. The statement that he gave to the magistrate is what Sergeant Sikeso told him. The signature on the confession is not his, but the initials are his. It was not read back to him. It was brought to him by Hoveka and he initials it and returned it. It was not explained to him. He testified that on 24 September 2012, he never told the court that he will plead in the absence of his lawyer. It was wrongly interpreted. He said he was not going to say anything he will wait for his lawyer. He pleaded not guilty of all the charges.

[12] Counsel for the state submitted that the police officer denied having assaulted the accused. She submitted that the accused’s rights were explained to him. He made the warning statement and confession freely and voluntarily. He was given ample time by the magistrate to reflect on his decision to make a confession, but still insisted that he wanted to make a confession. Counsel also submitted that the plea in terms of s119 of Act 51 of 1977 was done in accordance with the law, his rights were explained and he opted to plead in the absence of his lawyer.

[13] Counsel for the accused submitted that the accused’s rights were not fully explained to him. He further submitted that the information in the warning statement and confession was fed to him by sergeant Sikeso and that he had to repeat that in order for him to be admitted to bail. He further submitted that the accused was assaulted before he made the confession.

[14] Analysis of the evidence

The basis for the objection of the confession is that the accused was assaulted and he was forced to say what he said. The police officers who arrested the accused testified that he was not assaulted when he was arrested. Sikeso and Hoveka also testified that they did not assault nor did they see the accused being assaulted. Sikeso testified that he was only called from Otjiwarongo to come and take a warning statement from the accused. He informed the court that he did inform the accused of his rights. He vehemently denied having assaulted the accused and having told him what to say to the magistrate and that he will be admitted to bail if he told the magistrate what he (sergeant Sikeso) wanted him to say. It was not put to Sikeso that he promised bail to the accused. Sikeso informed the court that on 25 July 2012 when the accused was taken to the magistrate to make a confession he was in Otjiwarongo and not in Outjo, he also had no knowledge about the crimes and could therefore not have told the accused what to say to the magistrate. Hoveka testified that the accused came to his office on 23 July 2012 and informed him that he wanted to tell the truth. He told the accused to go and reflect on his decision to make a confession. On 23 July 2012 the accused came to him again and told him that he wanted to tell the truth. He then went to Magistrate Swartz and told him that the accused wanted to make a confession. The Magistrate told him to give the accused two days to reflect on his decision to make a confession. After 2 days the accused was prepared to make a confession. He was taken to the Magistrate where he made a confession. He denied having assaulted the accused. He also never saw any injuries on the accused and he also denied having taken the accused to hospital for assault injuries. The magistrate testified that he has taken many confessions and he always told accused persons that they were innocent until proven guilty and that they did not have to make a confession. He also explained the accused’s rights to him including the right to legal representation and that he (accused) was entitled to be represented during the process of making a confession. He did not observe any injuries on the accused nor did the accused tell him of any injuries or assault. The accused gave the confession freely and voluntarily. He was in his sober and sound senses when he made the confession. The accused is not being truthful when he testified that he was assaulted. He had the opportunity to inform the magistrate about the assaults, but did not do that. Being knocked out two to three teeth as he claimed, must have been painful and, if true, he would have told the magistrate about it. The accused also admitted that the magistrate explained his rights to him. Magistrate Swartz also explained that the plea in terms of s119 of Act 51 of 1977 was done in accordance with the law. Accused’s rights were explained and the accused pleaded guilty without being forced. From the evidence, Linyando was a competent interpreter. He started speaking Rukwangali at an early age, he learnt it at school, wrote exams and passed it. He is fluent in Rukwangali. It was never put to him that he was mixing Rukwangali with Rumbukushu. In any event, counsel for the accused never raised any misunderstanding between the accused and Linyando as a basis of the objection for admissibility.