What is an extra-curial statement?
An extra-curial statement is any statement made outside the court (extra curiam). What we are concerned with here are statements made by accused persons outside the court, i.e. when they are not giving evidence in court. An extra-curial statement is often called a warned and cautioned statement, though as we shall see that is a term that describes statements made by the accused to the police after being warned and cautioned.
Types of extra-curial statements
- An extra-curial statement may be written or oral.There is no rule that a statement must be reduced to writing, and the same rules as to admissibility govern oral and written statements.
- An extra-curial statement may be inculpatory or exculpatory, or partly the one and partly the other.In Zimbabwe we do not have the distinction that exists in South Africa between confessions and admissions.In South Africa the rules for admissibility of confessions are different, and more stringent, than those for the admissibility of admissions.In Zimbabwe our rules are the same for all statements, and are similar to the South African rules applicable to admissions.
- An extra-curial statement may be made to anyone, not just to a police officer.A statement made by an accused person to a bystander, or to a relative (other than his wife) will be admissible in evidence at his trial.
- If an accused person makes a statement to a police officer after he has been warned and cautioned, the statement is known as a “warned and cautioned statement”.This is the type of statement that is most frequently produced in evidence in criminal trials.
- There is the type of “statement” known as “indications” or “pointing out”, where the accused person shows the police something (e.g. shows the police where he buried stolen property).Very often this pointing out is accompanied by a statement.
Admissibility of extra-curial statements
The rules for the admissibility of extra-curial statements fall within the ambit of the law of evidence, but it is useful to recapitulate them here.
An extra-curial statement is admissible against the accused person if tendered in evidence by the prosecutor at his trial, if the statement is proved to have been:
- made by an accused person;
- freely and voluntarily (i.e. not induced by any threat or promise proceeding from a person in authority);
- without his having been unduly influenced to make it (i.e. there must not have been external influences that operated to negative the accused’s freedom of volition — such influences may include violence, threats, promises or subtler influences.The courts in Zimbabwe, England and South Africa regard as “undue” any practice which, if introduced into a court of law, would be repugnant to the principles on which the criminal law is based.);
This rule is codified in section 256 of the Criminal Procedure and Evidence Act, and applies whether the statement was made before or during the accused’s arrest, or afterwards, and whether the statement was oral or reduced to writing. The same rules for admissibility also apply whether the statement is exculpatory or incriminating.
Under section 256, once the State has proved that a statement has been made freely and voluntarily and without undue influence, it “shall be admissible” in evidence against the accused person. The court has no power to exclude it.
Note that a statement that was made voluntarily may be excluded if it was unduly influenced.
Note, too, that under the common law, and in South African law in regard to confessions, there is an additional requirement: that the accused must have been in his sound and sober senses when he made the statement, i.e. he must have known what he was saying. This is not required under our Criminal Procedure and Evidence Act, though if it is shown that the accused was not in his sound and sober senses — that his mind was so disturbed as to deprive him of his reason — the statement would certainly be ruled inadmissible.
The general rule is founded on various considerations. As is so often the case in criminal procedure, there is a need to balance various considerations. On the one hand, the criminal justice system would collapse if the prosecution could not rely on self-incriminatory statements made by accused persons. On the other hand:
- there is a danger that such statements are untrue;the less voluntary they are, the greater this danger;
- there is a need to prevent misconduct by the police and other law-enforcement agencies;
- there is a general feeling that it is unjust to convict a person on a statement that has been unfairly obtained.In the USA it has been held that to admit in evidence an involuntary confession is to deny the accused his constitutional right to a fair trial.
The onus of proving that an extra-curial statement is admissible rests on the prosecution — and it must be proved beyond a reasonable doubt.
The police customarily warn and caution an accused before recording a statement from him. This is a salutary practice, but not essential for the statement’s admissibility. If an accused person is warned and cautioned, it is desirable to give him particulars of how it is alleged the crime was committed, to the extent that the police know them, so that the accused understands what he is faced with. These particulars should be recorded in the preamble to the statement. The accused must also be informed of his right to remain silent and even if he has already been informed of this right it is desirable to mention it in the preamble.
According to section 258(2) of the Criminal Procedure and Evidence Act:
“It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial.”
This appears to mean that evidence can be led that an accused person pointed out something incriminating (for example, the place where a murder weapon was discovered) even if he had been assaulted and compelled to point the thing out. In S v Nkomo 1989 (3) ZLR 117 (S), however, our Supreme Court held that that meaning could not be given to the section since our Constitution outlaws torture:
“It does not seem to me that one can condemn torture while making use of the mute confession (i.e. the pointing-out) resulting from that torture, because the effect is to encourage torture. I conclude therefore that [s 258(2)] of the Criminal Procedure and Evidence Act must be interpreted in such a way as to exclude what I would describe as the mute confession element of the pointing out where the allegation of torture in relation to the pointing out is raised and not satisfactorily rebutted.”
So if an accused person alleges that he was compelled by violence to make an indication, or to point something out, the State cannot lead evidence of the indication or pointing-out unless it shows that it was not in fact induced by violence.
The South African Appellate Division, in the case of S v Sheehama 1991 (2) SA 860 (A), interpreted the equivalent provision in the South African Criminal Procedure Act, 1977, as meaning that when evidence of a pointing out is otherwise admissible (i.e. made voluntarily), it will not be inadmissible merely because it forms part of an inadmissible statement. The court said the legislature never intended to authorise evidence of forced pointings-out.
Sheehama’s case probably reflects the current law of Zimbabwe more accurately than Nkomo’s case, which was decided in 1989 before present Constitution came into force. The previous Constitution did not have a provision equivalent to section 70(3) of the present Constitution, dealing with the admissibility of unlawfully-obtained evidence, and in the light of that section it is arguable that evidence obtained as a result of an unwilling pointing out is obtained illegally and hence is inadmissible. If, on the other hand, the pointing out is done voluntarily then evidence obtained as a result of it is admissible.
Failure to mention relevant facts
According to section 257 of the Criminal Procedure and Evidence Act, if an accused person, when questioned by the police as a suspect in a crime that is under investigation, fails to mention a fact that is relevant to his defence and which he could reasonably have been expected to have mentioned, the court “may draw such inferences from his failure as appear proper”; and the court may treat the accused’s failure to mention the fact as corroborating the other evidence against him. In other words, the fact that an accused does not disclose important aspects of his defence will be held against him. This is a serious limitation on the “right to silence”.
As indicated earlier, this provision is unconstitutional in that it infringes the accused’s pre-trial right to silence.
Production of extra-curial statements
The way in which extra-curial statements of accused persons is given in court depends on whether or not the statements have been confirmed by a magistrate before they are tendered in evidence. Because most extra-curial statements have not been confirmed, we shall deal first with the procedure for producing unconfirmed statements in evidence.
Tendering of unconfirmed extra-curial statements
The procedure for introducing unconfirmed statements into evidence is through what is called a “trial within a trial”. Where the statement was made to the police and reduced to writing, the police officer who recorded the statement will be called by the prosecutor and asked if the accused made a statement at the relevant time and place, whether the accused was properly warned and cautioned before he made it and if he made it freely and voluntarily and without undue influence being brought to bear on him. At this stage the prosecutor must not ask the police officer what the accused said.
Assuming that the police officer answers the questions affirmatively — i.e. assuming he says that the accused did make a statement and that he did so freely and voluntarily — the prosecutor will say: “I tender the statement in evidence”, and the magistrate or judge will then ask the accused questions to see if he agrees that he did make a statement and, if he did, that he made it freely and voluntarily and without undue influence.
If the accused agrees that he did make the statement freely and voluntarily and without undue influence, the statement will be read out by the police officer and admitted in evidence.
If, on the other hand, the accused denies making the statement, or claims that he made the statement through any form of coercion or undue influence, the statement cannot be admitted in evidence unless the court has found it to be admissible after a “trial within a trial” in which the accused’s allegations of coercion or influence are thoroughly investigated. The onus is on the prosecution throughout to prove that the statement was made voluntarily.
A trial within a trial begins with the court asking the accused to give particulars of his allegations. While he does so, the police officers who are to be witnesses must leave the courtroom. The judge or magistrate should record the accused’s allegations in some detail. The prosecutor then leads evidence from the police officers who were involved in recording the statement, and in doing so should deal with the accused’s allegations in order to rebut or contradict them. The accused is entitled to cross-examine the witnesses. Sometimes the statement itself may be produced as evidence of its voluntariness, if for example it is long and rambling, on the rather dubious basis that such a statement is more likely to be voluntary than a short one. This practice has, however, been queried — probably correctly so. After the prosecutor has led evidence for the State in order to establish the voluntariness of the statement, the accused is entitled to lead evidence and the prosecutor can cross-examine him and his witnesses. It should be noted that the cross-examination must be directed at the voluntariness of the statement and cannot go into the question of whether the accused is guilty or innocent of the crime charged against him.
At the conclusion of the trial within a trial the court must decide whether or not the prosecution has proved beyond a reasonable doubt that the statement was made freely and voluntarily and so is admissible. If the court decides that it was, its decision is an interlocutory (i.e. provisional) one and can be altered if evidence given later in the trial shows that the statement may have not have been made voluntarily.
Production in evidence of confirmed extra-curial statements
Confirmation procedure
Part VIII of the Criminal Procedure and Evidence Act deals with the confirmation of extra-curial statements, that is to say, bringing an accused person before a magistrate so that the admissibility of any statement made by him, whether orally or in writing, can be investigated and the statement, if found to have been made freely and voluntarily without undue influence, can be “confirmed”. The procedure was introduced to cut down the number of challenges to the admissibility of extra-curial statements and to obviate the delays occasioned by “trials within trials” in which their admissibility was determined.
If a statement is confirmed by a magistrate it is presumed to have been made freely and voluntarily and without undue influence, and at the accused’s subsequent trial the onus rests on him to prove the contrary if he challenges it.
The procedure is not mandatory, and in the majority of cases it is not followed. On the other hand, it has been said that if a statement which has not been confirmed is tendered in the High Court, the court will regard it with some suspicion.
At confirmation proceedings the magistrate’s role is investigatory, and the investigation is supposed to be a thorough one. If the accused admits that he made the statement freely and voluntarily, the magistrate should satisfy himself that the admission is genuine and unequivocal, made by the accused with an understanding of his rights, and that he understands the consequences flowing from confirmation. The magistrate should also ascertain whether the accused’s desire to see his legal practitioner is being frustrated. Finally, before commencing the proceedings, the magistrate must satisfy himself that the accused person is in his sound and sober senses.
The procedure is as follows:
- The prosecutor produces the statement by handing it to the magistrate and informing him when, where and to whom the statement was made.
- The statement is read to the accused and he is informed of when, where and to whom it was allegedly made.
- The magistrate must ask the accused if he made the statement freely and voluntarily and without being unduly influenced. He must also explain to the accused that if he admits that he so made the statement, it will be confirmed and can be produced at his trial without further proof, and that if he contests its admissibility at the trial he will have to prove that it is inadmissible.
- If the accused admits that he made the statement freely and voluntarily and without undue influence, the magistrate must confirm it by so endorsing it. The same applies if the accused refuses to answer questions as to whether he made the statement or whether he did so voluntarily: the magistrate must confirm it by endorsing it.
- If the statement has been translated into English, the magistrate must ensure that the translation represents what the accused actually said.
- If the accused denies making the statement, or alleges it was not made freely and voluntarily, the magistrate must ask him to give sufficient particulars to inform the State of the facts on which he relies and, where possible, to identify the people who pressured him into making the statement. The magistrate must also tell the accused that if he fails to mention any relevant fact which, in the circumstances, he could reasonably be expected to mention, the court may draw adverse inferences from his failure.
- If the accused alleges he was subjected to physical ill-treatment, the magistrate must note any injuries he observes and may have the accused medically examined.
- If the accused says anything that implies that he was offered some form of inducement to make the statement, the magistrate should question him to clarify the position. Confirmation without taking this course would be improper.
- The magistrate should also look out for suspicious factors which may indicate that undue pressure has been applied, such as a long period between the recording of a statement and the bringing of the accused to court for confirmation proceedings.
The accused is entitled to be legally represented at confirmation proceedings, and members of the public are permitted to be present in the same way that they can attend criminal trials.
After confirmation proceedings, the accused should not be returned to the custody of the police: sending him back to police custody would make a mockery of the protection the procedure is meant to afford.
If the accused is subsequently tried in the magistrates court and the confirmed statement is to be tendered in evidence at that trial, the magistrate who confirmed the statement should not preside over the trial.
Production of confirmed statement
Once a statement has been confirmed, it is admissible in any court on its production by the prosecutor. According to section 256(2) of the Criminal Procedure and Evidence Act, if the accused wishes to challenge its admissibility the onus is on him to prove, on a balance of probabilities, that it was not made by him or that he did not make it freely and voluntarily without having been unduly influenced.
In other words, an accused person who challenges a confirmed statement faces a reverse onus. In S v Zuma & Ors 1995 (2) SA 642 (CC), the South African Constitutional Court held that the equivalent provision in the S.A. Criminal Procedure Act violated the accused’s right to a fair trial. The reasoning in Zuma’s case is compelling:
“[T]he common-law rule in regard to the burden of proving that a confession was voluntary has been not a fortuitous but an integral and essential part of the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. These rights in turn are the necessary reinforcement of Viscount Sankey’s ‘golden thread’ — that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington’s case supra). Reverse the burden of proof and all these rights are seriously compromised and undermined. I therefore consider that the common-law rule on the burden of proof … forms part of the right to a fair trial.”
Challenge to validity of confirmation proceedings
It is open to an accused person at his trial to challenge the validity of confirmation proceedings (instead of, or as well as, challenging the admissibility of the statement). He may rely on factors such as denial of legal representation, or threats by the police that any resistance to confirmation would lead to further torture. If the accused raises a potentially sustainable challenge to the confirmation of his statement, the court must determine the validity of the challenge as a separate preliminary issue before the statement is produced in court. In such a case the onus is on the State to prove the validity of the confirmation proceedings beyond a reasonable doubt.
The conduct of confirmation proceedings may be proved by producing the record of the proceedings; the record may be handed in by any person.
Deletion of prejudicial matter from extra-curial statements
Sometimes accused persons mention things in their statements which would be inadmissible and prejudicial to them if revealed at their trial. For example, an accused person may admit that he has previous convictions, or that he has committed some other crime.
In terms of section 256(3) of the Criminal Procedure and Evidence Act, a prosecutor is allowed to alter an accused person’s written statement by deleting such matters from it. The accused must be given notice of the prosecutor’s intention, and this is done by serving on him a copy of the statement from which the matters have been deleted, and giving him five days within which to object to the deletion. If the accused does object to the deletion, then the original statement is admissible at his trial despite the prejudicial material.
Two points should be noted. First, there is no provision in section 256(3) for the accused person to waive the requirement of five days’ notice. This suggests that he cannot do so, and that it is not competent for a prosecutor to alter the statement in court and obtain the accused person’s consent to the deletion. Secondly, it would not be enough simply to serve a copy of the amended statement on the accused. He should be informed what alterations are proposed to be made to the statement and invited to object if he so wishes. He should also be told of the consequences of any objection or failure to object to the proposed deletion.
Objections to our law vis-à-vis extra-curial statements
The procedure regarding extra-curial statements is open to several objections.
It encourages suspects to make statements to the Police
The police can detain suspects for up to 48 hours. During that time the detainee has all “non-essential wearing apparel” removed and is kept in police cells. Sometimes the detainee is left there for a day or more before a warned and cautioned statement is recorded. Such treatment gives the police, at the very least, a significant psychological advantage. In such circumstances, can it really be said that any statement recorded from a detained suspect is truly voluntary?
The statement may not be reliable
A suspect may think that the easiest way to escape questioning and detention is to lie and construct an alibi. If, at his subsequent trial, the alibi is destroyed, his credibility will suffers.
The police may themselves draft a statement and pressurise a suspect to sign it, leading to the police being able to slip in terms (e.g. “intent”) which have a particular legal significance of which the suspect is unaware. Sometimes the police may insert such terms into a statement inadvertently, through misunderstanding what the suspect is trying to say. In either event a statement recorded by the police may not reflect what the suspect really means.
If the police try to extract a statement from an accused person by using methods that would be impermissible if they were employed in open court, this may not become apparent at the subsequent trial. The rules of procedure are there to ensure fairness, and they should not be capable of evasion in this way.
The State can tailor its case to meet the defence case
In civil proceedings, the defendant sees the plaintiff’s summons or declaration before setting out his defence, and can ask for further particulars if any of its details are obscure. The defendant can therefore ascertain the plaintiff’s full case before revealing his own. In criminal proceedings, in contrast, the police do not have to reveal any evidence that they have against the accused before asking him to give them his side of the story.
Note that from the Judges’ Rules, the purpose of police questioning is theoretically to clear up ambiguities and establish the facts. In fact, it is often to persuade the suspect to talk.
Reliance on confessions leads to skimped investigations
In many cases where the prosecution relies on a confession by the accused person, there is additional evidence available to prove the accused person’s guilt. Through relying on a confession the police often ignore this other evidence, so the only evidence presented to the prosecutor in the police docket is evidence of the commission of the crime (the complainant’s statement) and the accused’s confession. If the confession is ruled inadmissible, the prosecution fails.
The trial court may read an accused’s statement even if it is subsequently ruled inadmissible
When an accused person’s statement is tendered in evidence at his trial, the presiding judge or magistrate will often be able to read the statement before ruling on its admissibility. So even if the statement is subsequently ruled to be inadmissible, the judge or magistrate will know what the accused told the police and, being human, he may believe that the statement was true even if the accused was forced to make it.
The police can get statements from accused persons who are unaware of their rights
Most Zimbabweans are ignorant of their rights. And for cultural and historical reasons, they often regard the police as all-powerful. Hence they are not likely to object to improper conduct on the part of the police.
Although the police have to advise accused persons of their right to engage a lawyer, few Zimbabweans can afford to engage legal practitioners to advise them. Even those who can afford legal representation cannot always get their lawyer to drop everything and rush down to the police station. In any event, legal advice given to accused persons at a police station is not always satisfactory. Inexperienced lawyers sent to represent a client who has been arrested may not be as challenging as they ought to be.
Commonly, an accused person will make a statement to the police, but at his subsequent trial will deny making it or, more often, will deny making it freely and voluntarily. This may be because at his trial he realises for the first time that he was not obliged to say anything to the police and tries to evade the implications of his statement by falsely alleging that he was assaulted or threatened or otherwise forced into making it. If the accused had been given proper legal advice at the outset, he would probably not have made the statement at all. But without that advice or adequate knowledge, he falls back on extravagant allegations of assault which are easily proved to be false and which may distract the court’s attention from the fact that other undue influences may have been brought to bear on the accused (e.g., he may have been promised a more lenient sentence, or release on bail, if he admits the crime).
Conviction of accused person on proof of confession
Under section 273 of the Criminal Procedure and Evidence Act [Chapter 9:07], an accused person who has pleaded not guilty can be convicted if the prosecution proves that he confessed freely and voluntarily to the crime charged, and that the crime charged was actually committed.
See the article by Judge N.J. McNally, “Extra-curial Statements” in Legal Forum vol 4 no. 4 (Dec 1992).
R v Barlin 1926 AD 459 at 462; Hoffmann & Zeffertt S.A. Law of Evidence 4th ed pp. 200 and 216.
Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p. 217.
R v Hackwell & Ors 1965 RLR 1 (A) at 17C. In S v Zaranyika 1997 (1) ZLR 539 (H) at 559D-E, Gillespie J said: “A confession or statement of an accused person can only be held to have been made without undue influence where the making of that statement is a voluntary exercise of the accused’s power to choose between silence or speech. If any factor external to that exercise of free will influence(s) the making of that statement, the question immediately arises whether that influence is undue. Previous decisions in this jurisdiction show that influence will be undue where the exercise of that external influence, if introduced in a court of law, would be repugnant to the principles upon which the criminal law is based.”
R v Sambo 1964 RLR 565 (A) at 571E-F; 1965 (1) SA 640 (R, AD)
S v Pietersen & Ors 1987 (4) SA 98 (C) at 100F.
Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p. 216.
Haynes v Washington 373 US 503 (1963), cited in Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p. 219.
Reid Rowland Criminal Procedure in Zimbabwe p. 20-4.
Section 50(4)(b) of the Constitution.
Nkomo’s case at 131F.
Section 69 of that Act.
S v Donga & Anor 1993 (2) ZLR 291 (S) at 297, per McNally JA. See also the South African case of S v Gaba 1985 (4) SA 734 (A).
S v Dhliwayo & Anor 1985 (2) ZLR 101 (S) at 118 D–E.
S v Munukwa & Ors 1982 (1) ZLR 30 (S) at 33F-G.
Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S).
Section 113B of the Criminal Procedure and Evidence Act.
It is set out in section 113 of the Criminal Procedure and Evidence Act.
Section 113(3)(a) of the Criminal Procedure and Evidence Act. In this respect, i.e. endorsing the statement if the accused remains silent, the section violates the accused’s right to silence.
S v Slatter & Ors 1983 (2) ZLR 144 (S) at 159.
This right was conferred specifically by subsection (6) of section 113 of the Criminal Procedure and Evidence Act, but that subsection was repealed by Act 9 of 2006. Nevertheless, the references to “legal representative” throughout Part VIII indicate that there was no intention to remove the right to legal representation.
S v Munukwa & Ors 1982 (1) ZLR 30 (S) at 38E; S v Slatter & Ors 1983 (2) ZLR 144 (S) at 160G-H.
Woolmington v DPP [1935] AC 462 (HL).
At page 659G-I.
S v Woods & Ors S-60-93, quoted in S v Woods & Ors 1993 (2) ZLR 258 (S) at 268.
Section 115B of the Criminal Procedure and Evidence Act.
See Reid Rowland Criminal Procedure in Zimbabwe p. 20-13.
Rule (2) of the South African Judges’ Rules states: “Questions, the sole purpose of which is that the answers may afford evidence against the person suspected, should not be put.”
Section 50(1)(b) of the Constitution and section 41A of the Criminal Procedure and Evidence Act.
Cf S v Woods & Ors 1993 (2) ZLR 258 (S) at 273.