12

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 01/2014

In the matter between:

THE STATE

and

JAKOB KHOIKHOI ACCUSED

Neutral citation: S v Khoikhoi (CC 01/2014) [2015] NAHCMD 28 (19 February 2015)

Coram: LIEBENBERG J

Heard: 12 – 13; 16 – 18 February 2015

Delivered: 19 February 2015

Flynote: Criminal procedure – Evidence – Admissions – Admissibility – Duty on police and court to inform accused of fundamental rights – Accused duly informed of rights since arrest – No need to be repeated once satisfied accused understood meaning thereof – Accused in position to make informed decision.

Evidence – Witness statement – Verbatim explanation of rights need not be stated by officer explaining rights.

Evidence – Cross-examination – Cross-examiner should put his defence on every aspect in dispute to witness implicating accused whilst still on witness stand.

Summary: The State sought the admissibility of statements made to the police and magistrate by the accused during pre-trial proceedings. The evidence presented showed that the accused’s rights were explained to him on numerous occasions prior to him making a statement despite the accused asserting that he did not understand what these rights meant. However, from his own evidence it is clear that the accused was familiar with his fundamental rights. Statements ruled admissible in evidence.

ORDER

The oral statement made by the accused to C/Insp Jantjies, the accused’s warning statement, as well as the plea explanation in terms of s 122 of Act 51 of 1977 are ruled admissible in evidence.

RULING

Trial-within-a-trial

______

LIEBENBERG J:

[1] This is a trial-within-a-trial in which the court is required to decide the admissibility or otherwise of oral and written statements allegedly made by the accused to police officers at different stages during pre-trial proceedings. Also in dispute is the admissibility of a statement made by the accused in court during the Section 119 proceedings of Act 51 of 1977. The basis of the objections raised by the accused against the admissibility of the statements is that, although not disputed that the accused was informed of his rights, same were not explained to him and he was therefore unable to comprehend the consequences thereof.

[2] It is a well-established principle that the court is under a duty to adequately inform an unrepresented accused of his or her right to legal representation; which right includes the entitlement to legal aid and that these rights equally apply to pre-trial proceedings. Failure to explain these rights to an unrepresented accused would amount to an irregularity and where a failure of justice had resulted from the irregularity (because the accused was prejudiced and not afforded a fair trial), such failure would result in the proceedings being vitiated (S v Shikunga and Another, 1997 NR 156 (SC)). The accused has the same rights during pre-trial proceedings.

[3] It is common ground that the accused was arrested by Warrant Officer (W/O) Katutu on 09 March 2013 at farm Sommerkoms, situated in the district of Gobabis. He was able to communicate with the accused through one Paul Seritshane, also a police officer, who acted as interpreter. He interpreted from English into Damara/Nama and vice versa, the latter being the accused’s mother tongue. W/O Katutu informed the accused of his right to remain silent; the right to be legally represented including the right to legal aid and when he asked whether he understood what was explained to him, the accused just kept quiet but nodded his head in confirmation. Paul Seritshane confirmed the evidence of W/O Katutu in material respects and further added that when the accused was asked whether he had killed the deceased, he gave an exculpatory explanation saying that he just found the body as the police did. According to him the accused’s nodding of the head is confirmation that he understood what had been explained to him and at no stage did the accused bring to his attention that he did not follow or understand any explanation given. The accused was thereafter locked up in the police vehicle and subsequently handed over to Chief Inspector (C/Insp) Jantjies, the Criminal Investigation Unit Commander, at Gobabis.

[4] C/Insp Jantjies testified that he had spoken to the accused on two occasions, first on the Friday night at farm Sommerkoms after his arrest and again two days later in his office when he was brought there by Sergeant Mokhatu.

[5] On the first occasion he and the accused conversed in the Afrikaans language after the accused confirmed that he understood the language. After informing the accused that he was suspected of committing a serious offence, he proceeded to explain to the accused his rights. These included his right not to say anything and to remain silent and whatever he says would be recorded and could be used against him in a court of law; the right to legal representation and the right to State funded legal representation. At this stage it was not explained to him how he should go about when applying for legal aid; this was done by C/Insp Jantjies in his office on Monday morning, though.

[6] On the Friday night at farm Sommerkoms and after the accused was informed of his rights he, according to C/Insp Jantjies said ‘I just found the body as you did and I don’t have a knife to have committed the offence’. Before he continued C/Insp Jantjies stopped him and reminded him of his right to remain silent where after the accused kept quiet. Whether or not the accused at this stage had been fully apprised of his rights before making the exculpatory statement, in my view, is a matter of minor importance.

[7] C/Insp Jantjies in his testimony explained that he adopted in cases involving serious crime the practice to first interview the suspect to ensure that his/her rights are properly explained prior to the taking of a warning statement. This, he said, was to avoid the situation where accused persons later on assert that their rights were not duly explained to them. It is common cause that the accused was brought to the office of C/Insp Jantjies on Monday 11 March 2013 where he was given the same explanation of his rights, except that on this occasion he was further informed that if he wished to apply for legal aid, he could lodge his application at the magistrate’s office. They conversed in the Afrikaans language and all this transpired in the presence of Sergeant Mokhatu, who corroborated the evidence of C/Insp Jantjies in every respect. When the accused started making a statement C/Insp Jantjies stopped him and reminded him that any statement he wishes to make will be reduced to writing. The accused informed him that he did not require the services of a lawyer at that stage and wished to give a statement where after he and Sergeant Mokhatu proceeded to his office.

[8] In cross-examination counsel for the accused took issue with the fact that the explanation given to the accused of his rights was not recorded verbatim in C/Insp Jantjies’s witness statement. In response thereto the officer explained that it was not required and that he could elaborate on the explanation given when called upon to do so. I am not aware of any authority that requires the verbatim recording of any of the rights explained to a suspect or accused person, neither has counsel referred me to any. Despite defence counsel’s assertion that the accused on none of these occasions understood the rights explained to him, C/Insp Jantjies was adamant that he did, as the accused on both occasions confirmed that he understood what was explained to him.

[9] Sergeant Mokhatu said he followed the format set out in the pro-forma warning statement and the information entered in ink was done by him in response to questions put to the accused. They conversed in the Afrikaans language and in his view the accused understood him very well. At no stage did the accused inform him that he did not understand what was asked of him. Sergeant Mokhatu when recording the statement translated it into English and after everything was done he read it back to the accused. After being satisfied with the statement the accused appended his thumb print to the document. Whereas the pro-forma document in respect of the right to legal representation makes no provision for the right to legal aid, Sergeant Mokhatu, in addition, explained to the accused that he could apply for legal aid and the procedure how this must be done. According to the witness he made certain that the accused fully understood what was explained to him. When the accused expressed his willingness to make a statement he reduced it to writing.

[10] Other that putting it to the witness that the accused did not understand his rights ‘the reason being that it was the fourth time that his rights were explained’ to him, the evidence of this witness essentially remained unchallenged.

[11] The accused during his evidence disputed that whilst with C/Insp Jantjies, his rights were explained to him; also when his warning statement was obtained. Clearly that is contradicting to his instructions to counsel. He also denied having made any statement to Sergeant Mokhatu who, according to him was busy with a document which was much later brought to him by another officer to have his thumbprint appended thereto. This aspect of his evidence was however never put to the witnesses in cross-examination. In this regard I endorse the sentiments expressed in S v Boesak, 2000 (1) SACR 633 (SCA) at 647c-i where Smalberger JA stated:

‘[50] (I)t is clear law that a cross-examiner should put his defence on each and every aspect which he wishes to place in issue, explicitly and unambiguously, to the witness implicating his client. A criminal trial is not a game of catch-as-catch-can, nor should it be turned into a forensic ambush.

[51] In this respect, we are in full agreement with the comments made by the Constitutional Court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at 36J-37E:

“[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn (1893) 6 R 67 (HL) and has been adopted and consistently followed by our Courts.

[62] The rule in Browne v Dunn is not merely one of professional practice but 'is essential to fair play and fair dealing with witnesses'. [See the speech of Lord Herschell in Browne v Dunn, above] . . .

[63] The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed . . . particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.”’

[12] When asked to explain the contradictions in his evidence the accused said he was not familiar with court proceedings and not aware that he could consult with his counsel during the trial, though he knew of such practice in the lower courts; that he did not give his counsel instructions on certain aspects of his evidence as counsel was only conversant in English. When asked why he did not make use of the services of the interpreter in attendance, he said that he was rushed out of court by the police on every occasion.

[13] What is clear from the preceding paragraph is that the accused was unable to give an acceptable and satisfactory explanation for the contradictions in his evidence.

[14] The accused’s first appearance in the magistrate’s court was before magistrate Nyazo on the 12th of March 2013. During these proceedings the accused was informed of his rights as set out in the annexure. These rights were explained to him through the official interpreter where after the accused elected to conduct his own defence, notwithstanding the gravity of the offence having been pointed out to him. The learned magistrate explained that he at that stage did not deem it necessary to explain to the accused the procedure as to where he should apply for legal aid, simply because the accused was adamant that he would act in person. I am unable to fault the magistrate’s approach.

[15] When the accused again appeared on the 24th of September he was required to plead in terms of s 119 of Act 51 of 1977 and after the provisions of the section were explained to the accused, he pleaded not guilty and the magistrate invoked the provisions of s 122. The accused informed the court that he understood where after he elected to give a plea explanation which was recorded. The magistrate said that he at that stage did not deem it necessary to explain to the accused his right to self-incrimination. When the court enquired from the accused whether he would require legal representation at the trial, he intimated that he will apply for legal aid where after the application procedure was explained to him.