The State v Lovemore Katayamaoko and Else Banda

The two accused persons were in a marriage relationship since July 2011 and were both employed at Plot number 7 Moulton Estate, Saruwe. They were charged with the murder of Edward Zvoma, their employer's brother, on 7 September 2011. During investigations, the first accused made a warned and cautioned statement recorded by Detective Sergeant Nyasha Chikorondo on 26 December 2011 and witnessed by Constable Farai Muzondo. The first accused challenged the admissibility of this statement, alleging it was obtained under duress. He claimed he was assaulted with a Coca-Cola bottle, handcuffed and suspended between tables at Norton police station, threatened with a firearm by police officers who showed him the loaded gun, and coerced into signing by threats that he would be denied bail. When he appeared before a magistrate for confirmation of the statement, he repudiated it, and the magistrate declined to confirm it. However, during his initial remand proceedings on 29 December 2011, the accused had told the magistrate he had no complaints against the police.

• Whether the warned and cautioned statement made by the first accused was made freely and voluntarily
• Whether the statement was obtained through duress, threats, or improper police conduct
• Whether the statement should be admitted as evidence in the murder trial

The warned and cautioned statements and indications made by the first accused were held to be admissible in court.

Where an accused person alleges that a warned and cautioned statement was obtained under duress, but previously told a magistrate during initial remand proceedings that he had no complaints against the police, such contradictory conduct renders the allegations of duress improbable and undermines the credibility of the challenge to voluntariness. The State must prove beyond reasonable doubt that a disputed statement was made freely and voluntarily without undue influence. The absence of visible injuries on an accused person militates against allegations of severe physical assault by police. Police officers investigating serious homicide cases are not expected to handle accused persons with kid gloves, and their possession of firearms for protection does not constitute improper conduct.

The court observed that while it is possible that the police may have roughed up the accused during investigations, this possibility does not necessarily render a statement inadmissible. The court noted that police possession of firearms for their own protection and that of others in the context of investigating serious crimes is not objectionable.

This case illustrates the Zimbabwean courts' approach to trial-within-a-trial proceedings concerning the admissibility of confessions and warned and cautioned statements. It demonstrates the importance of consistency in an accused's conduct and statements when alleging duress or police misconduct. The case also reflects the court's recognition that police conduct in serious homicide investigations need not be overly gentle, while still requiring proof beyond reasonable doubt that statements were made freely and voluntarily. The case emphasizes the weight given to contradictory statements by an accused when challenging the voluntariness of confessions.