What are confessions, what are the rules of evidence that govern admissibility of confessions?

Section 17  an admission is a statement oral or written which suggests any inference as to a fact in issue or relevant fact and which is made by any of the parties.  Provisions of S. 17 there are two kinds

Formal admissions are usually made in the pleadings, a party to a breached contract claim can admit blame and that will be a formal admission.

Informal admissions may be made before or during proceedings, you cannot have a formal admission without anticipation of a particular matter but informal are made before or during the proceedings.  Informal admissions could be confessions. 

A confession then is an admission by words or conduct or by a combination of both from which an inference can reasonably be drawn that the maker has committed an offence. 
What is the relationship between admission and confessions?

The relationship is that admissions is the broader category of statements oral or written. Confessions operate only in criminal while admissions are in both civil and criminal

Evidence Act defines confessions in two ways: -
 It is a statement or an aadmission made by a person at any time when charged with a crime stating or admitting an inference that he/she committed the crime.

Swami V. King Emperor Page 22 Course outline 7th

This case contains the first ever definition of confession
Lord Atkin stated the following:
“No statement that contains that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.”  Lord Atkin is saying that a confession must admit the offence in its terms or substantially all the facts which constitute the offence. (culpa has to do with guilt and exculpatory is removing one from guilt whereas inculpatory will be what would be incriminating)

in our Evidence Act Section 25 defines confessions “a confession comprises words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with…

Section 32 (2)

Section 25 deals with confessions made by an accused about his own involvement in the offence whereas 32 is confessions made by an accused person touching not only on his own involvement but on the involvement of others.  The requirement at 32(2) are more stringent, since in 25 confessions is said to comprise words or conduct… the operative words are “the person making it has committed the offence”  32(2) includes the commission of the offence and also facts constituting

Under 25 definition of confession includes both an express admission of an offence as well as admission of incriminating facts, there is express and implied.  The words “whether taken alone or …

Section 32(2) the confession has to have the effect of admitting in terms either the offence or substantially all the elements constituting the offence.

When you implicate another person, the rules get more stringent, but when you admit your own guilt without others it is assumed that you will be careful enough not to get put down for a specific offence.

Commissioner of Customs & Excise V. Hertz

In this case, while in the course of investigating a suspect fraudulent failure by a company to pay tax, customs officers subjected Hertz to interrogation lasting 3 hours.  During the 3 hours, Hertz made incriminating admissions.  The power to interrogate was derived from a statute under which both Hertz and his attorney were made to believe that failure to answer questions Hertz could be prosecuted.  For the belief that prosecution would have ensued if he did not answer all questions, Herz would not have answered all the questions.  Herzt was subsequently charged with conspiracy to cheat and defraud the customs of tax and the prosecution sought to tender evicence of his oral admission.  Hertz was convicted and he Appealed and on appeal it was held that the admissions were inadmissible because firstly the relevant statutes did not confer power to subject a trader to prolonged interrogation.  Secondly the admissions were made under threat of prosecution and were therefore not voluntary. 

The Evidence Act lays out what kinds of confessions will be admissible

Section 26  a confession is not admissible if its admission appears … which has reference against an accused person, such inducement threat or promise emanating from a person in Authority or coming from a c

In Section 26 certain words are critical in the definition “if it appears to the court”the proceeding from a person in authority. “supposing that by making it he…”

“if it appears’ – it is clear that this does not amount to proof of the matter.  The accused does not have to proof beyond reasonable doubt.  He only needs to make it apparent to the court enough to raise doubt as to the voluntary of the statement.  This is in favour of the accused person.

‘threaten, induce or promise be of a temporal nature, it should not be of a spiritual nature. The inducement threat or promise should relate to the charge of the accused person.  It has to come from a person in authority and this is anyone whom the prisoner or the accused might think capable of influencing the prosecutor.

Muriuki V. R

A person in authority as one who has or appears to have power to influence a decision.

Deokinan V. R Page 21 course outline

In this case the Appellant was charged with murdering his co-worker and appropriating money which had been entrusted to him by his employer to buy timber.  He confessed to a friend and the friend reported him to the police.  He was not suspicious when he saw his friend in the cell and repeated the confession to the friend.  This confession was produced in evidence.  The defence objected to this confession as it was induced.  The court held that the evidence was admissible since it did not emanate from a person in authority and therefore the confession was admissible.

Inducement must be sufficient to make the accused hope for some advantage or fear some prejudice.  Take into account a person’s experience and age, what they are exposed to and whether there has been a time lapse between inducement and confession.

Section 27

It is a question of fact when you say that the impression has  been removed.

Kaluma V. R

In this case the accused persons committed an offence in Uganda and fled to Kenya.  Police Officers sent to arrest them intended to induce them with beautiful girls but the accused got wind of this and they dated the girls and murdered them and threw them in Athi River and they fled back to Uganda.  They were apprehended in Uganda and after interrogation they confessed the murders.  When brought to stand trial for the murders, the Kenya investigators realised that the confessions might not be admitted as they had been procured by torturing the accused.  The prosecution cautioned and warned the accused to forget what they had said in Uganda and warned them that what they said could be held against them.

The accused adopted the statements that they had made in Uganda and the question was whether the statements made in Kenya adopting the Uganda ones were admissible.  The court held that they were admissible as the threats in Uganda had ceased to operate by the time they made the confessions in Kenya and the defining circumstances for removing the threat of inducement had passed.

Once a confessional statement is produced and a question of voluntariness is raised, the burden is on the prosecution to prove the voluntariness.  The accuse need only raise doubt about the voluntariness.

Onyango Otolito V. R           Page 22 Course Outline

The Appellant was convicted of house breaking and theft; the conviction was based on a confession obtained in curious circumstances which were as follows

The accused was arrested and placed in police custody, he was removed from the cell taken to court and charged with two offences. He was cautioned and after the caution he made an exculpatory statement to a Police Inspector.  He was then returned to the cells where he stayed overnight and the following day, an assistant inspector interviewed him and he admitted breaking into the house.  On the same day he was charged with the two offences again and cautioned.  He proceeded to make an incriminating statement to the chief inspector.  At the trial, the Appellant alleged that the Police Inspector tortured him and it was as a consequence of the torture that he made the incriminating statement.  The trial magistrate had overlooked these allegations for torture and this was an appeal against conviction.

The court of appeal held that the magistrate should have addressed himself to the issue of the voluntariness of the statement.  He ought to have asked the appellant whether he admitted that the statement was voluntary.  If the Appellant denied the voluntariness of the statement, a trial within a trial ought to have been held and this would have established the voluntariness of the statement or otherwise.

Section 26  - words used are if it appears.

Njuguna S/O Kimani and others V. R

In this case, the Appellant were convicted of murder.  There was practically no evidence against them except 4 inculpatory statements amounting to confessions made to a police officer in May 1954.  The accused had been taken to police custody on 15th March 1954 and remained in custody until June of that year.  There was no suspicion of their being involved of the murder in issue whilst in custody they became suspects of being involved in the murder under consideration and it was at this point that they made the 4 statements after they were cautioned.  The caution went like this “I have received information that you are alleged to be connected with the offence I am inquiring into.  Do you wish to say anything followed by the usual words “anything you say might be used in evidence’ the statement did not disclose the offence and the question was whether these statement were admissible against the accused persons and the court held that
1.                  It is the duty of the court to examine with the closest care and attention all the circumstances in which a confession has been obtained from an accused especially when the accused has been in custody for a long time.
2.                  The onus is upon the prosecution to prove affirmatively that a confession has been voluntarily made and not obtained by improper or unlawful questioning.  The prosecution also has to prove that any inducement to make the confession had ceased to operate on the mind of the maker at the time of the making.

The case of Njuguna is an authority for the that its is incumbent to the prosecution to prove the voluntariness of a confession if any doubt is alleged.


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