LISWANISO v THE PEOPLE (1976) ZR 277 (SC)

SCZ Judgment No. 58 of 1976

Flynote
Criminal law - Evidence - Evidence obtained as a result of an illegal search and
seizure - Admissibility of.
Headnote
The applicant, an Inspector of Police, was convicted of official corruption, the
allegation being that he corruptly received a sum of K80 in cash as consideration for
the release of an impounded motorcar belonging to the complainant. The evidence on
which the applicant was convicted was obtained by means of a trap; the handing over
of the currency notes in question by the complainant was pre-arranged with the police,
and they were recovered from the complainant's house during a search conducted
pursuant to a search warrant. It was common cause that at the time the police officer
in question applied for the search warrant to be issued he swore that the money in
question was in the applicant's house when in fact it was in that officer's possession. It
was argued on behalf of the applicant that the search warrant was invalid and the
resultant search illegal, and that any thing found as a result of such a search was
inadmissible in evidence.
Held:
(i) Apart from the rule of law relating to the admissibility of in voluntary
confessions, evidence illegally obtained, e.g. as a result of an illegal search
and seizure or as a result of an in admissible confession is, if relevant,
admissible on the ground that such evidence is a fact regardless of whether
or not it violates a provision of the Constitution (or some other law).
(ii) The evidence of search and seizure of the currency in the case under
consideration, although based upon an irregular search warrant, was rightly
admitted by the trial court because that evidence was a relevant fact. (Per
curiam) Any illegal or irregular invasions by the police or anyone else are
not to be condoned and anyone guilty of such an invasion may be visited by
criminal or civil sanctions.
Cases cited:
(1) Karuma, Son of Kania v R (1955) AC 197; (1955) 1 All ER 236.
(2) Mapp v Ohio (1961) 367 US 643.
(3) Weeks v United States (1914) 232 IS 383.
(4) State v Reynolds (1924) 101 Conn. 224.
(5) The People v Defoe (1926) 242 NY 413.
(6) Cupp v Murphy (1973) 412 US 29.
(7) King v R (1968) 2 All ER 610.
(8) R v Doyle (1 888) 12 Ont. R 347.
(9) R v Honan (1912) 26 Ont. LR 484.
(10) R v Duroussel (1933) 2 DLR 446.
(11) Attorney-General for Quebec v Begin (1955) 5 DLR 394.
(12) Emperor v Alladad Khan (1913) ILR 350 11 - 258.
(13) Emperor v Ali Ahmed Khan (1923) ILR 46 A 11 - 86.
(14) Chwa Hum Htive v King Emperor (1926) ILR 11 Rang. 107.
(15) Larrie v Muir (1950) Scots LT 37.
(16) McGovern v HM Advocate (1950) Scots LT 133.
(17) Jones v Owen (1870) 34 JP 759.
(18) The People (AG) v O'Brien (1965) IR 142.
Legislation referred to:
Constitution, Article 19 (1).
M W Mwisya, Mwisiya Chongwe & Co., for the appellant.
K R T Tampi, State Advocate, for the respondent.
Judgment
Silungwe CJ: delivered the judgment of the court.
The applicant, a 43 - year - old Assistant Inspector of Police, was convicted in the
Subordinate Court of the First Class on a charge of official corruption, the allegation
against him being that he had corruptly received a sum of K80 cash from one Isaac
Sithole. The applicant who was a first offender was given a custodial sentence of
eighteen months. His appeal to the High Court against conviction and sentence was
dismissed.

Briefly, the facts on which the conviction was founded were these. In leeway, 1975,
the complainant, Isaac Sithole, lent his Peugeot 404 car to someone. About two days
later the complainant received information concerning the car and when subsequently
he met the applicant at a bus terminal, the applicant told him he had impounded the
car because of defective tyres. The applicant then said that if the complainant wanted
to 15 discuss the matter "properly" he should come to his (the applicant's) house.
When the complainant visited the house, the applicant demanded payment of K100 as
consideration for the release of the car adding that if the matter went to court he (the
complainant) would pay a lot of money. The complainant, who had no money went
away without the car.

After some weeks the complainant reported the matter at the Police Force
Headquarters to Detective Assistant Inspector Kapaso. The complainant was told to
return on 5th June, 1975. On 4th June the complainant visited the applicant's house
and told him he would bring the money on the following day. On 5th June he paid the
applicant another visit and on this occasion it was arranged that money would pass
hands at the applicant's residence in the evening of that day. At about 0900 hours on
the same day, the complainant dutifully returned to Detective Assistant Inspector
Kapaso and strategy was planned. Detective Assistant Inspector Kapaso then prepared
a search warrant and had it signed by a magistrate. At 1800 hours on that day he made
a record, in the presence of two police witnesses - Detective Sergeants Ngangula and
Chisenga - of the numbers of all the relevant bank notes, K80 in all, comprising two
K20 notes and four K10 notes. Shortly afterwards the three police officers proceeded
to the complainant's residence, picked him up and, in an effort to secure an
independent witness, they went to the home of a Mr John Ncube and took him with
them to the applicant's residence. The K80 bank notes were handed to the
complainant as well as a box of matches with instructions that a match should be lit to
signify that money has passed hands. The police officers remained some 50 metres
away from the applicant's house but John Ncube positioned himself in the verandah of
the house. The complainant entered the applicant's house and after the applicant had
accepted and received the K80 cash, a match was lit and a short while later the police
officers arrived at the house. Detective Assistant Inspector Kapaso asked the applicant
if he had any money and when a negative reply was received permission to search the
house was sought but the applicant refused to grant it because he "was shocked" to
see them come into the house. After the search warrant had been shown to him the
house was searched by the police in the presence of the applicant and his wife in
consequence of which the very K80 cash that had been handed to the complainant for
the purpose was found in the right inside pocket of the applicant's jacket taken out of
a wardrobe in the applicant's bedroom. The applicant was thereupon arrested and
charged.
It is common cause that at the time that Detective Inspector Kapaso applied for the
search warrant to be issued he swore that the money in question was in the applicant's
house when in fact it was in that officer's own possession. The police officer therefore
swore a false declaration in this respect and it is this false declaration and its
repetition in the search warrant itself which it is argued rendered the search warrant
invalid and the resultant search illegal. Mr Mwisiya on behalf of the applicant has
argued forcefully that anything found as a result of such search, ie., the cash in
question, was inadmissible in evidence. He has drawn attention to Article 19 (1) of the
Republican Constitution which provides as follows:
"19. (1) Except with his own consent, no person shall be subjected to the search of his
person or his property or the entry by others on his premises."

There are certain exceptions to this constitutional rule one of which (although not
specifically referred to in the Constitution) being a properly issued search warrant.
It is contended by Mr. Mwisiya that since the United Kingdom has no written
Constitution as such, English case law on evidence illegally procured, for instance,
Kuruma, son of Kaniu v R (1) is not relevant, but that decisions of the United States
of America on the matter are because that country, like Zambia, has a written
Constitution. In aid of his submission, he placed reliance upon Mapp v Ohio (2), to
which we shall return.

It is the Fourth Amendment in the USA that brings search and seizure into the
constitutional sphere. That amendment is couched in broad language and provides as
follows:
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized."
The provision was in disuse for more than a century. It was only about sixty - two
years ago, in Weeks v United States (3) that the modern development of the Fourth
Amendment began. That case involved the seizure of personal papers and effects
including letters from a man's house without a search warrant. A Federal District
Court refused to order the return of anything that would be used as evidence at the
trial saying that the question of how evidence was obtained was not material.
Evidence of search and seizure was then introduced at the trial resulting in the
defendant's conviction. But the Supreme Court reversed the conviction.

Delivering the opinion of the court Day, J., put it in this way:
"If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offence, the protection of the Fourth Amendment,
declaring his right to be secure against such searches and seizures, is of no value, and,
so far as those thus placed are concerned, might as well be striker from the
Constitution."
However, a contrary stance has been taken in many states within the United States of
America. For instance, in the State of Connecticut in State Reynolds (4) Wheeler, J,
had this to say:
"When evidence tending to prove guilt is before a court, the public interest requires
that it be admitted. It ought not to be excluded upon the theory that individual rights
under these constitutional guaranties are above the right of the community to
protection from crime. The complexities and conveniences of modern life make
increasingly difficult the detection of crime. The burden ought not to be added to by
giving to our constitutional guaranties a construction at variance with that which has
prevailed for over a century at least."

And in the State of New York in The People v Defoe (5) an observation was made on
the impropriety of acquitting a person who is guilty on account of the illegal conduct
of another. In that case, Cardozo, J, forcefully expressed himself thus:
". . . a room is searched against the law, and the body of a murdered man is found. If
the place of discovery cannot be proved, the other circumstances may be insufficient
to connect the defendant with the crime. The privacy of the home has been infringed,
and the murderer goes free."

Wigmore, an ardent supporter of admissibility in this context, stated quite

categorically that legality in the method of obtaining evidence did not affect its
admissibility at common law, and he strongly attacked what he regarded as an
aberration on the part of certain American courts in departing from this rule. He
particularly attacked the decision in the Weeks' case (3) as -
"making justice inefficient and . . coddling the law - evading classes of the population.
It puts Supreme Courts in the position of assisting to undermine the foundations of the
very institutions they are set there to protect. It regards the over - zealous officer of
the law as a greater danger to the community than the unpunished murderer or
embezzler or panderer."
(Vice Wigmore on Evidence, 3rd Eden (1940) Vol. VIII, Sec. 2184 at pp. 36 and 37).

Wigmore's general principle is that logically relevant evidence should be admitted

unless there is a powerful policy reason to the contrary. He argues that in the Weeks'
case (3) there was no such reason, as the illegal actor could be penalised by criminal
or civil sanctions, without excluding the evidence. His approach is consistent with his
interpretation of the confession rule in relation to the admissibility in evidence of
property discovered in consequence of inadmissible confessions. The ground upon
which he justifies the exclusion of the improperly induced confessions is that they
might be untrue, and therefore do not fit into a pattern of logical relevance. On the
other hand, evidence procured through illegal searches and seizures involves no such
risk.
We shall now revert to Mapp v Ohio (2). That was a case in which the defendant
stood convicted of knowingly having had in her possession and under her control
certain obscene materials in violation of Ohio's Revised Code. Her house was
searched under a purported "warrant". At the trial there was "considerable doubt" as
to whether there had been any warrant for the search of the defendant's house.
Accordingly the search and seizure were found to be contrary to the letter and spirit of
the Fourth Amendment. The Supreme Court came to the conclusion that all evidence
obtained by unconstitutional search and seizure is inadmissible in both Federal and
State Courts, regardless of its source.
Mapp's case (2) was decided in 1961. In 1973 Cupp v Murphy (6) was decided. There
a woman who had been estranged from her husband was found dead by strangulation.
On hearing of her death, the husband voluntarily came to the police station where he
was questioned. One of the police officers noted a dark spot on his finger and asked to
allow scrapings to be taken from the fingernails, but he refused. However, against his
protest and without a warrant the police took scrapings from his fingernails. These
turned out to contain traces of skin, and blood cells and fabric from the victim's night
- gown. He was convicted at the trial. On appeal to the State Court he contended that
the fingernail scrapings were the product of an unconstitutional search in notation of
the Fourth Amendment, but his conviction was sustained. The United States Court of
Appeals for the Ninth Circuit later held that, in the absence of an arrest or other
exigent circumstances, the search was unconstitutional. When the matter ultimately
came before the Supreme Court the validity of the search was upheld. In spite of the
absence of contemporary arrest in this case, the court held that an arrest could have
been made at that time, since there was probable cause, and it sustained the validity of
the action taken by the police on principles which allow a search incidental to an
arrest. The court observed that the defendant might be motivated "to attempt to
destroy what evidence he could", and that the principle of search in connection with
the arrest; "justified the police in subjecting him to the very limited search necessary
to preserve the highly evanescent evidence they found under his fingernails".

There are conflicting authorities in common law countries on the subject of evidence
illegally obtained (other than involuntary confessions). In Commonwealth countries
there is seemingly no uniform rule on the subject. However, the Canadian and Indian
cases state a clear uniformity on the rule of admissibility based upon the relevance
and trustworthiness of the evidence itself. The recent Scottish decisions, although they
tend to stress the discretionary aspect, also appear to be pointing in the same direction.
To the same effect are the two important cases that have, in recent years, come before
the Privy Council. The first of these - Kuruma's case (1) - occurred in 1955 and the
second one - King v R (7) - in 1968. Both these cases will be dealt with later.
The Canadian cases, it will be observed, proceed on the principle that evidence
procured through illegal searches and seizures is admissible because it is a fact (i.e.
true) and relevant, and that such evidence cannot therefore be adversely affected by
proof of illegality in the means of obtaining it. One of the important Canadian cases is
R v Doyle (8) in which it was held that evidence obtained by execution of an illegal
warrant was admissible. In a careful judgment, Wilson, CJ, said this at page 353:
"I think the evidence is admissible so long as the fact so wrongly discovered is a fact
- apart from the manner it was discovered - admissible against the party."
The learned Chief Justice examined the relationship between the confession doctrine
and the question of evidence procured through illegal searches and seizures.
Following the analysis that was later elaborated by Wigmore, he said that the reason
why improperly induced confessions were excluded was because they could not be
depended upon to be true, whereas property discovered in consequence of
inadmissible confessions or as a result of an illegal search was admitted as evidence
because it was a fact - a relevant fact. Doyle's case (8) has been followed in many
others including R v Honan (9); R v Duroussel (10), and Attorney-General for Quebec
v Begin (11).
As has already been pointed out, the Indian authorities support the admissibility of
evidence obtained through illegal searches and seizures on the basis, apparently, that
such evidence whatever the mode of Obtaining it, is relevant and therefore
admissible: Emperor v Alladad Khan (12); Emperor v Ali Ahmed Khan (13). In Chwa
Hum Htive v King - Emperor (14), drugs were discovered as a result of an irregular
search Bagulay, Jo., observed that the irregularity in the search was a mere
technicality but stated in general terms that evidence obtained consequent upon the
commission of irregularities was nevertheless admissible In his brief statement of
principle he said at page 109:
". . . it must be remembered that the acquittal of guilty accused is just as much
miscarriage of justice as the conviction of an innocent person."

Scottish cases, some of which were cited in Kuruma's case (1) and King's case (7),
show that the courts will have regard to the circumstances of each case in determining
the admissibility of evidence procured by illegal search and seizure. Larrie v Muir
(15) and McGovern v H.M. Advocate (16) serve as good examples. In Larrie v Muir
(15) evidence of milk bottles obtained as a result of an illegal search by Inspectors
employed by Scottish Mink Marketing Board was held inadmissible because the court
was apparently influenced by the [act that the illegal search Had been made not by
policemen possessing a "large residuum of common law discretionary powers" but by
privately employed inspectors. Lord Justice -General, Lord Cooper, who delivered the
unanimous judgment of the court, carefully reviewed Scottish authorities and cited
some dicta by the House of Lords. Lord Cooper then said:
"It seems to me that the law must strive to reconcile two highly important interests
which are liable to come into - (a) the interest of the citizen to be protected from
illegal or irregular invasions of his liberties by the authorities, and (b) the interest of
the State to secure that evidence bearing upon the commission of crime and necessary
to enable justice to be done shall not be withheld from courts of law on any mere
formal or technical ground. Neither of these objects can be insisted upon to the utter
most. The protection of the citizen is primarily protection for the innocent citizen
against unwarranted, wrongful and perhaps high handed interference, and the
common sanction is an action for damages. The protection is not intended as a
protection for the guilty citizen against the efforts of the public prosecutor to vindicate
the law. On the other hand the interest of the State cannot be magnified to the point of
causing all the safeguards for the protection of the citizen to vanish, and of offering a
positive inducement to the authorities to proceed by irregular methods."
We shall now turn to the English authorities. In Jones v Owen (17), the accused was
searched illegally by a constable and twenty - five young salmon found in his pocket.
This evidence was held by Justices to be admissible upon a charge of unlawful
fishing. On appeal to the Divisional Court of the Kings Bench Division, Mellor, J,
said at page 760 (Lush, J, concurring):
"It would be a dangerous obstacle to the administration of justice if we were to hold,
because evidence was obtained by illegal means, it could not be used against a party
charged with an offence."
In the Kuruma case (1), the accused was charged in Kenya with being in unlawful
possession of two rounds of ammunition contrary to emergency regulations of that
country. The commotion was alleged to have been found in his pocket by two police
officers who (it was assumed) had no power of search under the regulations.
Following upon the admission of evidence of the illegal search, the accused was
convicted. The Court of Appeal for East Africa and the Judicial Committee of the
Privy Council dismissed appeals against conviction. In giving the advice of the Board,
Lord Goddard, C.J., said:
"In their Lordships' opinion the test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If it is, it is admissible and
the court not concerned with how the evidence was obtained."
In commenting upon some Scottish cases he aid:
"If for instance some admission of some piece of evidence, e.g., a document, had been
obtained from a defendant by a trick, no doubt the Judge might properly rule it out."
And later on he said:
"In their Lordships' opinion when it is a question of the admission of evidence strictly,
it is not whether the method by which it was obtained is tortious but excusable, but
whether what has been obtained is relevant to the issue being tried."
Their Lordships pointed out that they were not qualifying in any degree whatsoever
the rule of law with regard to the admission of confessions.
King v R (7) was an appeal to the Privy Council against the decision of the Court of
Appeal of Jamaica. There the accused was illegally searched under the purported
authority of a search warrant and dangerous drugs were found in his possession. At
his trial on a charge of being in possession of dangerous drugs, evidence of possession
was admitted. On appeal to the Judicial Committee of the Privy Council it was held
that the evidence obtained in consequence of the illegal search warrant had been
rightly admitted. Lord Hodson, who delivered the opinion of the court, said at p. 617:
"The appellant relied in support of his submission that the evidence illegally obtained
against him should be excluded on the argument that it was obtained in violation of
his constitutional rights, and reference was made to an Irish case of The People (AG.)
v O'Brien (18) where the point was discussed by the Supreme Court of Eire. The
provision of the Jamaican Constitution scheduled to the Jamaican (Constitution)
Order in Council, 1962 (S.I. 1962 No. 1550 para. 19) gives protection to persons
against search of persons or property without consent. This constitutional right may or
may not be infringed in a written Constitution, but it seems to their Lordships that it
matters not whether it depends on such infringement or simply the common law as it
would do in this country. In either event, the discretion of the court must be exercised
and has not been taken away by the declaration of the right in written form."

It is thus patent that in English law the general rule is that all relevant evidence is
admissible and the fact that it was obtained illegally is immaterial (in so far as the
case before the court is concerned). In other words, in considering whether evidence
is admissible the test is whether it is relevant to the matters in issue, and, if it is
relevant, the court is not concerned with the method by which it was obtained or with
the question whether that method was tortious but excusable; this principle, however,
does not qualify the rule that a confession can only be received in evidence if it is
voluntary.

The Scottish authorities apply much the same underlying principles as the English
ones save that they accord a large measure of discretion to the trial judge.
The Canadian and Indian authorities are mainly in favour of reception of evidence
although it was illegally procured on the ground of the relevance of the evidence
itself, the only concern of the courts, particularly in Canada, being with the
"trustworthiness" of such evidence.
As regards the American authorities, they are mainly concerned with constitutional
provisions. The courts there adhere rigidly to the doctrine of the exclusion of the
"fruits of the poisoned tree", and lay emphasis on the disciplining of the police as the
motivation of the exclusionary rule. An example of this is to be found in the case of
Mapp v Ohio (2) where it was said in the majority judgments
". . . The purpose of the exclusionary rule is to deter - to compel respect for the
constitutional guarantees (against illegal searches) in the only effective available way
- by removing the incentive to disregard it."

It would appear, however, that in common law jurisdictions there is one unanimity
that clearly stands out, namely, that courts of law do deprecate any illegal or irregular
invasions by the authorities of the individual's liberties.

On an examination of the authorities on the subject with which we are here

concerned, two opposing views emerge. The first one is that it is important in a
democratic society to control police methods and activities in order to secure a
satisfactory assurance of respect for the law. It is argued that this can be achieved by
denying to the police the right to use evidence that has been illegally obtained on the
basis that it is better that guilty men should go free than that the prosecution should be
able to avail itself of such evidence. The second is that it is not desirable to allow the
guilty to escape by rejecting evidence illegally procured and that what is discovered in
consequence of an illegal act should, if relevant, be admissible In evidence but that
the policeman, or anyone else, who violates the law should be criminally punished
and/or made civilly liable for his illegal act. Although the law must strive to balance
the interests of the individual to be protected from illegal invasions of his liberties by
the authorities on one hand and the interests of the State to bring to justice persons
guilty of criminal conduct on the other, it seems to us that the answer does not lie in
the exclusion of evidence of a relevant fact.

The law (as amplified by authorities) will now be applied to the facts of this case.
When Mr Mwisiya made his submission concerning the alleged irrelevance of the
English law on the subject of evidence illegally procured, attention was not drawn to
King's case (7) since that case only came to light during consideration of this
judgment. As has already been pointed out that was a case in which the defendant's
constitutional rights had been violated, the argument before the court being that the
evidence that had been illegally obtained as a result of such a violation should be
excluded. The Judicial Committee of the Privy Council expressed the view that it
matters not whether it is a written Constitution or the common law that has been
violated, and held that the evidence that had been obtained as a result of the illegal
search warrant had been rightly admitted. In the case now before us Detective
Assistant Inspector Kapaso obtained the search warrant on the basis that the money in
question was in the applicant's house. In fact at that point in time that money was in
his (the police officer's) possession. He could, for instance, have sworn that he had
reasonable cause to believe that the money would be in the applicant's possession
sometime that day and this would have been perfectly proper. Alternatively, he could
have, in the first place, caused the arrest of the applicant and thereafter conducted a
search in which case a search warrant would not have been necessary. It would appear
to us that the mistake made by the police officer concerned was a venial one and not
fraudulent or else he would not have taken the trouble to obtain the search warrant
had his intention been deliberately to disregard the law. We have already referred to
Cupp v Murphy (6) where, although the search warrant was unconstitutional in that
the search preceded the defendant's arrest, the Supreme Court nevertheless upheld the
validity of the search. The court in that case held that despite the fact that the search,
which was without a warrant, preceded the defendant's arrest, such an arrest could
have been made at that time as there was probable cause, the court sustained the
validity of the action taken by the police on the principles that allow a search which is
incidental to an arrest. In that case, as in the present one, the defendant might be
motivated "to attempt to destroy what evidence he could" and the principle of search
in connection with the arrest "justified the police subjecting him to the very limited
search necessary to preserve the evidence".

On the authorities, it is our considered view that (the rule of law relating to
involuntary confessions apart) evidence illegally obtained, e.g., as a result of an illegal
search and seizure or as a result of an inadmissible confession is, if relevant,
admissible on the ground that such evidence is a fact (i.e. true) regardless of whether
or not it violates a provision of the Constitution (or some other law). In our view the
evidence of search and seizure of the currency in the case now under consideration,
although based upon an irregular search warrant, was rightly admitted by the trial
court because that evidence was a relevant fact. But we wish to make it abundantly
clear that any illegal or irregular invasions by the police or anyone else are not to be
condoned and anyone guilty of such an invasion may be visited by criminal or civil
sanctions. It seems to us good law that an involuntary confession should as a general
rule be excluded because of the danger that it might be untrue but that the evidence of
anything obtained as a result of an illegal act should be admissible because it is a 35
relevant fact and therefore trustworthy. It would be difficult to appreciate how a court
could consciously close its eyes to a relevant fact that has been presented before it.
In the present case the evidence of the currency was a relevant fact and therefore
admissible. The application for leave to appeal against conviction is refused.

Application for leave to appeal refused