CONFESSION

CONTENT

1.0       Introduction

2.0       Objectives

3.0       Main Contents

• Definition
• Voluntary Nature of Confession
• Proof of Voluntariness
• Attacks on Confession

5.0       Conclusion

6.0       Summary

7.0       Reference/Further Readings

INTRODUCTION

Matters relating to confessions are problematic and contentious areas of the Law of Evidence. Perhaps for this reason, the Evidence Act has provided certain safeguards against pitfalls and also imposed some duties and obligations on the agencies concerned with criminal investigations. You should be familiar with the topic for the purpose of examinations. In this unit, you shall learn what a confession is and about its admissibility,  the effect of any confession that is wholly incriminatory or wholly exculpatory or mixed, the vexed question of a person in authority and protection of persons who are no more than suspects of crime(s).

OBJECTIVES

When you have studied this unit, you should be able to:

1. Define or Explain the term “Confession”
2. Distinguish Admission from Confession
3. Gain knowledge of the conditions precedent to admissibility of a confession
4. Explain evidential implications of statements that are wholly or partly adverse to its maker.
5. Recognize the safeguards and the added duties imposed on State Agencies to enhance the voluntariness of a confession
6. Critique the state of Law of Evidence on “confession”

MAIN CONTENT

Definition

A confession is:

• an admission tending to establish the guilt of a person charged with a crime . It is an acknowledgement in express words by an accused of the truth of the main fact charged or of some essential part of it.
• An admission made at any time by a person charged with a crime, stating or suggesting the inference that he or she committed that crime.- Section 28
• if voluntary, deemed to be a relevant fact as against the person who has made it only;

Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other person(s) in whose presence it was made unless he/she adopted the said statement by words of conduct.

Read: Evidence Act, 2011 Sections 28-29.

It is also an exception to the rule against hearsay.

Admissions and Confessions

Some writers and judicial opinions find no differences between admissions and confessions and sometimes use both terms interchangeably. See the case of Commissioner of Customs and Excise V Harz (1967) where the House of Lords expressed the view that there is no distinction between admission and confession

Others have found a distinction between an admission and a confession on the basis of facts from which guilt may be inferred and the express admission of guilt itself.

Voluntary Nature of a Confession

It is a fundamental condition of admissibility of evidence that a confession should have been made voluntarily are not by inducement, threat or promise, under the old law, a statement or a confession is voluntary if:

• It is not caused by any inducement, threat made by or in the presence of a person in authority.
• The promise or threat does not give the maker a reasonable ground for supposing that he or she will gain any advantage or avoid any disadvantage of a temporary nature as a result of making the statement

Under the Evidence Act, 2011,

A confession, which is relevant to any matter in issue in the proceeding, is admissible if the court does not exclude it.

The Court would exclude it if:

• the confession was obtained by oppression of its maker
• the confession was obtained in circumstances which render it unreliable except the prosecution proves beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provision of Section 29 of the Evidence

Also note that a confession otherwise relevant does not become irrelevant merely because it was made:

• under a promise of secrecy
• in consequence of a deception
• when the maker was drunk
• in answer to question which need not be answered
• not under caution that he is not bound to make such statement and that it may be given in evidence.

See Sections 29 and 31, Evidence Act, 2011. The often quoted principle is that:

“It has long been established as a positive rule of Criminal law that no statement by an accused is admissible in evidence against him or her unless it is shown by the prosecution to have been a Voluntary Statement, in the sense that it had not been obtained from him or her either by fear of prejudice or hope of advantage exercises or held out by a person in authority” Per Lord Sumner in Ibrahim V R (1914)

This principle is as old as Lord Hale and it has been referred to with approval by the House of Lords in Commissioner of Customs and Exercise V Harz 1967.

It is submitted that this case may not be good law in Nigeria today as the wording of section 28 of 2004 is different from section 31 of 2011.

If a threat or promise under which a statement was made still persists when a second statement is made, then the second statement also is inadmissible. Only if the time lag between the two statements and the circumstances existing at the time are such that it can be said that the original threat or inducement has been dissipated then can the second statement be admitted as a voluntary statement.

The whole of the confession, if relevant, is admissible (if admissible at all), even though some parts are favourable and the other unfavourable.

It needs to be emphasized that an accused can be affected only by his or her own confession. The confession by his or her agents, accomplices or strangers would bind the accused, if and only if, such confession was made in his presence or assented to by him or her. But a threat or promise made by a person in authority to a third party in the hope or expectation that it will eventually be communicated to the accused suffices to render the confession inadmissible.

Consider an allegation that a police officer promised an accused a glass of spirits, or permission to see his wife and the accused made a statement confessing to the crime

What about such declaration by the Police Officer as:“I need to take a statement from you” or even the suggestion that the accused would accompany him to the Police station because they need statement from him or her.

Admittedly, the Police officer is a person in authority but neither of the above fact situations can vitiate the admissibility of the statement of the accused or his/her confession.

A Person in authority

One of the differences between the Evidence Law prior to 2011 and after is the reference to person in authority.

He is a person in authority whom the accused might reasonably be supposed to be capable of influencing the course of the prosecution.

Examples of persons in authority are persons engaged in the arrest, detention, examination, prosecution, or punishment of the accused. That is to say: the Magistrate, the Police Officer, Prosecutor (Public and Private etc). Other Examples are Justices of the Peace, Military Police, Customs and Excise officials and Officers of the State Security conglomerate who may be engaged in criminal investigation. In some situations, it may include the village heads and owners of stolen property. The current law makes no reference to persons in authority.

Proof of Voluntariness

A condition precedent for admissibility of evidence prior to and under the Evidence Act 2011 is that it must have been made voluntarily and the burden of proving that a statement was voluntary lay on the prosecution. As Lord Sumer explained.

“It has long been established as a positive rule of Criminal law that no statement by an accused is admissible in evidence against him or her unless it is shown by the prosecutor to have been a voluntary statement, in the sense that it had not been obtained from him or her either by fear of prejudice or hope of advantage exercised or held out by a person in authority”. Ibrahim v R (1914)

Once the prosecution has first discharged his or her burden to prove that the statement is voluntary. It noted on the defence to prove that the statement was made involuntarily.

Some questions need to be asked:

What should be the proper concern of the Court?

Is it whether or not the statement was made voluntarily or as a result of fear of prejudice or hope of advantage for the purpose of determining its admissibility, or

Is it whether or not the statement was made voluntarily or as a result of fear of prejudice or hope of advantage for the purpose of determining what value the court should attach to the statement?

The burden is on the prosecution to prove that;

• The statement had been made voluntarily and therefore admissible
• No threat, promise or inducement had been made to the accused

(iii). If there was, its effect had been nullified before the accused made the statement in issue.

Threat, Promises etc

The presence of a threat or promise that was operational and had not been nullified or had not spent its force or dissipated would render inadmissible any subsequent statement made by the accused person under the old law.

“If a threat or promise under which a statement was made still persists when a second statement is made, then the second statement also is inadmissible. Only if the time lag between the two statements, the circumstance existing at the time, and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement”

It was the practice that after the prosecution has first discharged the burden of proving that the confession was voluntary, the onus shifts to the defence to prove that the statement is involuntary.

• Confession under the old and the new law of Evidence: The comparative provisions for confession are shown below:-

Old Law                                                                                 New Law

1.      Statute Evidence Act 2004   2.      Definition A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. (Sec. 27(1)).   3.      When       confession       is      relevant confessions, if voluntary, are deemed

Evidence Act 2011.     A confession is an admission made at any time, by a person charged with a crime, stating or suggesting the inference that he committed that crime. (Section 28).     Section 29 (1) If, in any proceeding where the

 

to be relevant facts as against the person who make them only. Section 27(2).                                                                       Where more than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or a jury,   shall   not   take   such   statement into consideration  as  against  any  of  such other

prosecution proposes to give in evidence, a confession made by a defendant, it is represented to the court that the confession was or may have been obtained: (a)         by oppression of the person who made it; (b)         In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him, in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.   3.  In any proceeding where the prosecution proposes to give in evidence a confession made by a dependant, the court may of its own motion require the prosecution as a condition of allowing it to do, to prove that the confession was not obtained as mentioned in either subsection 2(a) or (b) of this section.     4.  Where more persons than one are charged jointly with an offence, and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any of such other persons in whose

 

persons in whose presence it was made unless he adopted the said statement by words or conduct. Section 27(3).               Confession caused by inducements (section 28) A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it, he would gain any advantage or avoid any evil of a temporal nature. Confession, it is relevant if it was made after impression caused by such inducement, threat or promise has, in the opinion of the court been fully removed (Section 30)

presence it was made unless he adopted the said statement by words or conduct. 2. In this section, “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.

 

ACTIVITY

The reason for rejecting an involuntary confession generates some controversy. Suppose a statement is relevant but was obtained by coercion. Do you think such relevant evidence should be denied admissibility?

Some critiques have argued that threat or fear of prejudice or hope of advantage should not affect the admissibility of an otherwise a relevant statement. Do you agree?

Let us consider some statements and their voluntary nature.

1. Adigwe believes that Ikem was sexually abusing her ward, Juliana. Adigwe dragged her into her room, with a piece of wood in her hand and said:

“If you do not tell me all about it, I will send for the Police”

Julian, kept mute. Adigwe called Oforji, a Police Officer. At the sight of the Police, Julian got frightened and confessed.

2. In a rage, Okafor said, pointing a gun to the accused, “If it was not Assize time. I would chop off your head”

In the above two illustrations, would you say the statements were induced. Obviously, neither of the statements can be said to be induced by operative threat or coercion.

Look at the case of R v Williams (1968)

In that case, the military Police questioned the accused, a soldier, about allegations of homosexual acts with a civilian. The military police informed him that they would not take proceedings against him but could not guarantee that the civil police would not.  The accused made a statement. This soldier was subsequently handed over to the Civil Police, who after interview, also made a statement. The prosecutor sought to tender both statements at his trial before the ordinary court.

Held: The statement made to the military police is inadmissible by reason of improper inducement. The second statement made to the Civil Police is also inadmissible on the ground that even though made after caution, the inducement made before the first statement was still operating on the mind of the accused.

This decision arose under the old law. The decision may be different under the new law. A confession may now be rejected in evidence if it is obtained by oppression or in circumstances in which it can be said that the prosecution has not discharged his burden n of proof beyond reasonable doubt that it was not obtained contrary to the Act (Section 29). Especially Section 31, without more, would not reject a confession merely because it was obtained in consequence of a deception practiced on the accused (Sec 31).

A confession otherwise relevant is not to become irrelevant because of promise of secrecy; Section 31. If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions or because he was not warned that he was not bound to make such statement and that evidence of it might be given. Evidence Act, 2004 Section 31 and Evidence Act, 2011, Section 31.

In R V Zaveekas (1970), the accused was charged with theft from a telephone booth. Before his trial, he asked a Police Officer;

If I make a statement, will you grant me bail now?”

The police officer replied “Yes” and the accused made a written confession.

The trial court admitted the confession and convicted the accused. Quashing the conviction, the Court of Appeal held that the confession was made as a result of a promise held out by a person in authority and that it made no difference that the question of bail was first raised by the accused himself. The case may be decided differently today. See Evidence Act 2011 section 29 and 31

R V Deokinanan v R 1968

The accused was charged with murder. The Police detained him, and locked him in a room with his best friend, B that both might freely talk. The accused confessed to B that he had committed the murder.

At the trial, the prosecutor sought to tender the confession by the accused to B, his best friend. The defence opposed the reception, arguing that it was induced by B’s promise to help the accused, a promise which had been held out by B with the knowledge and consent of a person in authority to wit the police officer in charge of the case.

In overruling this objection, the court held that even if it had been, it would not be rendered inadmissible unless it was held out by a person in authority. Decision would not be different under the new law whether or not it was held by a person in authority.

At the time of the confession, B was merely a possible prosecution witness, not a person in authority. The accused, at all material times regarded B as a friend, not as a person in authority or in any way connected with or working with the police. The objection to the admissibility of this confession therefore could not be sustained.

Let us look at additional statements.

An investigating police officer arrested A, B, C, D for various offences. Each of them made a statement in response to the following admonition from the police officer.

• Police to ‘A’: You need not say anything
• Police to ‘B’ You need not say anything but anything you say will be given in evidence against you.
• Police to ‘C’: You need not say anything but it could be better to speak the truth
• Police to ‘D’: You need not say anything to incriminate yourself

The prosecution seeks to tender in evidence each of the statements made by A, B, C, and D The defence objects.

(i) The attitude of the trial court is likely to be as follows:

The admonition to A and D by this Investigating Police officer leaves the accused persons with a choice to speak or hold his peace. There is no evidence of improper inducement. The objection to the admissibility of the statements by A and D is likely to be overruled.

• The words “against you” in C and the clause: “it could be better to speak the truth is likely to be fatal to the reception of the statements by B and C respectively. The first puts the maker (B) in anticipation of fear of harm. The second implies that it would be better for the maker (C) to say ‘something’ in violation of his or her fundamental right to silence

If the court is satisfied that a confession is voluntary, it does not become inadmissible merely because the police failed to administer a caution. But the admonition to speak the truth coupled with an expression implying that it would be better for him or her to do so, may be objectionable and such as would render the resulting statements involuntary and inadmissible.

Suppose Chinyere, Paul and Komolafe are directors of ABS and Co Plc and sought to have a competitive advantage over or liquidate their arch rival company KYZ and Co Plc. Chinyere. Paul and Komolafe embarked on espionage mission; bugged the office of the Chief Executive, KYZ and Co Plc and also carted away their brain box and production secrets. The Police arrested Chinyere, scourged her in the interrogation room up the small hours of the morning. She confessed.

Acting upon her confession, the Police recovered the brain box from where it was buried in her flower bed behind her bedroom, and other components from the chimney in Paul’s house.

At the trial, the persecution seeks to tender in evidence the following:

1. Chinyere’s confession
2. The brain box
3. Other components

The defence has opposed vehemently, arguing that the confession is involuntary or oppressive. Furthermore, as a bad tree cannot bear good fruits, the brain box and other components which are products of involuntary and inadmissible evidence are also  prejudicial and therefore inadmissible.

Fine argument; is it not?

Clearly Chinyere was coerced to make her statement: Such a coercion amounts to  oppressive behaviour or improper inducement and capable of rendering the confession involuntary and inadmissible.

Although a confession is inadmissible by reason of threat, evidence may be given that in consequence of what the accused has said, some property (to wit: the brain box and other components), was found or other facts discovered. (Re v Gould, 1840. R v barker (1941) R V Jonkins, 1822)

Thus the fact that the brain box was found in the flower bed beside Chinyere’s bedroom may be incriminating but may not by itself be sufficient to justify its admissibility or inadmissibility. For one thing, there is no evidence that Chinyere hid it there after it was stolen. But when, in addition, it is known that she had disclosed the where-about of the property (even though in an involuntary statement), the probative value becomes sufficiently strong to justify its admissibility.

In relation to the other components found in Paul’s chimney, do not forget that a confession is admissible only against the person who made it. But the fact that the property was found in Paul’s residence is of sufficient evidential value and weight justifying its reception.

There has been a line of cases since the 18^th century where confessions were held inadmissible because they were improperly induced whereas the evidence of the fact that as a result of the confession, stolen property were found with the accused: (R V Richards, 1832, (R V Warwickshal – 1983) or in a pond: R V Gould; 1840). These cases may preferably go the same way under the Evidence Act, 2011.

Valid Attacks on Confession

That a confession has been obtained by fear of prejudice or under hope of advantage exercised or held out by a person in authority though a valid attack against the reception of  a confession in evidence, under the old law may now be invalid.

What about an admonition to speak the truth, in a situation where a compulsion to say something is inherent in the expression: Take the example; ‘It would be better to speak the truth’

You would have noted that Section 29 of the Evidence Act, 2011 is silent on whether or not the part of such statement in favour of the accused is as admissible, as the incriminating part.

Brett/Ag CJ permitted the reception in evidence, a confession which is partly against and partly in favour of the accused because both sides are admissible at common law. This, with respect, is no more good law in Nigeria. Section 5(a) of the Evidence Act, 2004, made Common Law admissible but section 3 of the Evidence Act, 2011 now makes Common Law inadmissible as Common Law is not legislation validly in force in Nigeria. Hereinafter, all references to Common Law should be reviewed.

Compare and Contrast the following admonition:

• You need not say anything to incriminate yourself;
• It was better for you to speak the truth
• The Bank CEO said to his accountant:

“if you do not tell me all about it, I will send for the police.

The accountant said nothing until after the arrival of the police.

The investigating police officer (IPO) said to the suspect during interrogation: “If you fail to answer my question, you will be prosecuted, and he made certain admissions.

Read up Deokinan v R (1968) and R v Williams (1968).

Where an accused refuses to answer a question because it might tend to incriminate him and he is then improperly compelled to answer it, his answer is involuntary.

Where a statement is admitted, it is the whole of the statement that is admitted.

Adekanbi v AG (WN (1960).

Confessional Statement was tendered through the Accused during cross examination and was wrongly admitted. For this reason the conviction was quashed on appeal on the ground that the prosecution had not proved that it was made voluntarily.

Inusa Saidn v The State (1984)

The Confessional statement which was signed by its maker was held admissible unless it was obtained by force, trick, fraud, threat or inducement. In R v Omokaro (1947) in a free and voluntary confession of guilt by the accused, if it is direct and positive, duly made and satisfactorily proved, is sufficient to warrant a conviction, even if there is no corroborative evidence. In the current law, what may vitiate a confession is oppression or inability to  prove beyond reasonable doubt that the statement was obtained in a manner not inconsistent with the provisions of the Evidence Act. Anthony Ejinima v The State (1991)

E was charged with murder of 3 children, Admitted killing the 3 children, but denied at the trial and said armed robbers killed the children. The Supreme Court received the confession, dismissed the appeal and adopted the test laid down in R V. Sykes (1913), namely:

• Is there anything outside the confession to show it was true?
• Is it corroborated?
• Are the statements made in it in fact true as far as they can be tested?
• Was the prisoner the person who had the opportunity of committing the murder?
• Is his confession possible?
• Is it consistent with other facts, which have been ascertained and which have been proved?

A statement following a prolonged and Continuous questioning is as if it had been obtained by flinging or racking.

Limits of Improper Inducement

A statement made upon any inducement, threat or promise made by or in the presence of a person in authority is involuntary and hence inadmissible under the old law but seems admissible under the Evidence Act 2011. Furthermore a confession otherwise admissible does not become inadmissible merely because it is made under certain promises.

Example is:

• A statement made under a promise of secrecy
• Statement made in consequence of a deception by the persecution on the accused
• A statement made because the person who made it was drunk at the time
• A statement made in answer to a question which the maker need not have answered.
• A statement made voluntarily in the absence of a caution

When a statement is not an issue, neither the prosecution nor the defence is allowed to pick and choose the parts that are favourable to his or her case and omit those that may be prejudicial. The totality of the statement must be admitted or rejected.

Other safe Guards

You have seen that a confession must be given freely and voluntarily

It must not to be obtained by oppressive behaviour like torture. The accused person who makes a confession must be properly cautioned as specified in the judge’s rule.

CONCLUSION

A confession is admissible if it is voluntary; it is inadmissible if it has been induced by oppression e. g. Torture, inhuman or disregarding treatment, use of threat of violence. A confession does not become involuntary merely because it was induced by a moral or religious exhortation, promise of secrecy, in countenance of deception, or drunkenness, or in answer to questions he need not answer. Remember that the basic rule is that what the accused says outside the court in contradiction from what he says when giving evidence at the trial is evidence only against him (the speaker) and not anyone else. The court would not “edit out” any part of confession incriminating the accused. Existing cases on confession need to be examined critically as they were divided against the background of Evidence Act 2004 and some of them may not be good law today in Nigeria.

SUMMARY

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he or she committed that crime. You learnt of the difference between admission and confession. A confession must be voluntary, and devoid of oppressive conduct. A confession is liable to be attacked under certain defined circumstances as where it is not beyond reasonable doubt that the statement is obtained in a manner that is not consistent with the provision of the Evidence Act, 2011.

TUTOR MARKED ASSIGNMENT

1. Ringin has been charged with culpable homicide punishable with death of Dawodu. Ringin has now been informed that his brother Abdul has died as a result of a road accident and that just before he died, Abdul confessed to the killing of Dawodu. Can Ringin give evidence of Abdul’s confession?
2. Fagbemi has been charged with house breaking and theft. He then accompanied the police officer to the station, where he made a statement admitting the house breaking. Much later, he informed the police where he hid the hammer with which he broke in. The police searched the spot and recovered the hammer. The police  also found N50, 000.00 concealed in a newspaper wrapper under the flower. At the trial, Fagbemi said he had not been cautioned before making his statement. He said he was tortured to show them the instrument of offence and objected to the admissibility of the hammer and the N50, 000.00
   1. Is the statement admissible in evidence?
   2. Can the court admit the hammer and the N50, 000.00 in evidence?
   3. What are the conditions for the admissibility of confession?

REFERENCES/FURTHER READING

1. Aguda T. (2007) 14^th The Law of Evidence Spectrum book Ltd; Ibadan
2. The Evidence Act, 2011.