The Lusaka High Court has ordered a trial within trial to test the voluntariness of a warn and caution statement administered to a former Family Health Trust executive director accused of murdering a 19-year-old woman whose body was discovered dumped in Lusaka’s Gwerere area.
Particulars of the offence allege that on July 9 this year, in Lusaka, Zulu murdered Natasha Mukandawire.
Previously, a police officer, Rodgers Kanungo, testified before High Court Judge Wilfred Muma that he recorded a warn and caution statement from Zulu in a fair and friendly manner, adding that Zulu accepted to demonstrate what transpired on the day of the murder.
Kanungo testified that on July 13, 2019, his supervisor Stephen Nkowani asked him to record a caution statement from Zulu and to establish whether the accused was willing to demonstrate what transpired on the material day and whether he was willing to lead a team of investigators to the crime scene for reconstruction.
He told the Court that he made the environment conducive and ensured that Zulu was free as he was not handcuffed or beaten.
Kanungo testified that he started the caution by touching Zulu on his shoulder and read out the statement, which was in the police note book.
He said when he asked him whether he was willing to demonstrate and lead the officers to the crime scene for reconstruction, Zulu freely and voluntarily accepted.
In cross-examination, Kanungo admitted that he did not tell Zulu that he had an opportunity to refuse to demonstrate or lead the officers to the crime scene, but warned him that whatever he would say may be used against him in the courts of law.
However, Zulu’s defence lawyer Robert Simeza had argued that the caution statement was not administered in a free and voluntary manner, as his client was not given an opportunity to call his lawyer during the caution.
He added that his client was also not told that he had a right to refuse what the police were asking him to do.
But in response, the State argued that the warn and caution statement was properly administered to Zulu and that the objection by the defence should be dismissed.
The State further submitted that when the warn and caution was administered to Zulu, his reply was free and voluntary.
The state said it was ready to go into trial within trial to determine the voluntariness of the statement made by Zulu.
In reply, Simeza said Zulu was not informed that he had the right to participate or not to.
“We are trying to establish sufficiently that there is need to hold trial within trial on the issue of voluntariness and administration of the warn and caution statement,” Simeza said.
And ruling on the same, Judge Muma said issues and arguments raised had prompted him to order for a trial within trial to be conducted.
“I, therefore, order accordingly,” said Judge Muma.
The matter comes up November 25.