Warned and cautioned statement

What is a Warned and Cautioned Statement?

When one is accused of a crime, they are invited by the police to make a statement in their defence. This statement is known as a “warned and cautioned statement”. The statement has a bearing on the case should it proceed to trial.

The statement is the first recording of the Accused’s recollection of the alleged crime, or the circumstances surrounding the alleged crime as well as his defence to the alleged crime. The Accused should consult with a legal practitioner BEFORE recording the statement in order to establish one’s defence as well as assist in building the case going forward.

The Accused person’s rights.

What rights does an Accused Person have following an arrest?

An Accused has the right to be represented by a legal practitioner of their choice. They have a right to legal representation during the recording of their warned and cautioned statement. An Accused should not speak to the police about the matter or answer any questions in relation to the alleged crime in the absence of their lawyer. An Accused has a right to discuss the matter with their legal practitioner in private. The Accused should be honest with their legal practitioner regarding the alleged crime. Possible defences to the charge emerge from the Accused person’s story to their lawyer. It is unethical for a lawyer to invent defences for an Accused person which go beyond the facts disclosed by the Accused.

Confirmation of statement

The Warned and cautioned statement once recorded is read to the Accused person by the police officer in order to confirm the contents thereof. Once confirmed, the Accused person is asked to sign the statement in order to confirm that the statement is theirs whereafter it forms part of the record which will be before the trial court.

At trial, in terms of section 113 of the Criminal Procedure and Evidence Act [Chapter 9:07], should the State want to produce the statement, the Accused person will be required to confirm whether the statement is theirs and whether it was made voluntarily. The confirmation serves two purposes. If the Accused person confirms that it is indeed their statement which they made voluntarily, the statement may be taken as preliminary evidence. If the answer to either question is negative, there will be need to conduct a trial within a trial in order to establish the truth. The Accused would have to give particulars sufficient to inform the State of the facts upon which he relies for his allegation. The onus would then be on the State to prove that the statement is that of the Accused and that it was given voluntarily without undue influence.

As stated above, the statement has a bearing on the trial. It is important for the Accused person to either confirm the statement or deny it or establish that it was not made voluntarily. During thetrial proceedings, after having refused to confirm or deny that the statement was theirs or that the statement was made voluntarily, a departure from its contents or a denial of the statement by the Accused allows the trial court to treat that evidence as corroborating any other evidence given against the accused.