CONFESSIONS

*DISCLAIMER*

The notes below are adapted from the Kenyatta University, UoN and Moi University Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

Once a confessional statement is produced and a question of voluntariness is raised, the burden is on the prosecution to prove the voluntariness.  The accused need only raise doubt about the voluntariness. Onyango Otonito V. R.  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 15^th 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 caution.  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.

ARE VOLUNTARY CONFESSIONS ALWAYS ADMISSIBLE?

No!  A voluntary confession is not always admissible.  A confession has to conform to technical rules established in Section 28 and 29.

Section 28 deals with people making confessions whilst in police custody.  Even though a statement be voluntary if it is in violation of Section 28 it will not be admitted, it has to have been made in the presence of a Magistrate or Police Officer of the rank of sub Inspector and above.

Section 29 – this deals with statements or confessions taken by police officers by persons who are not in police custody.

Criminal Law Amendment Bill seeks to amend Section 28.  right now the law is that there is a distinction of confessions made by people in police custody and those not in police custody.  There have been arguments against the wide powers given to the police in taking confessions.  This comes in the backdrop of what was the position in the Indian Evidence Act, confessions made to police officer of whatever rank were not admissible and the issue of have confessions made to police officer of whatever ranks is an offshoot of the emergency period and had been brought in for expediency.

The amendment seeks to make confessions admissible only when they are made in court.

Who is a Police Officer?  For the purposes of this section a Police Officer includes all persons that are vested with the powers of a police officer by law.  It is not restricted to persons in uniform but whoever is empowered by law to exercise those powers they would fall in this category.  It also includes police officers in foreign countries (see Kaluma V. R)

Masola bin Msembe  

 

This case defines a police officer and is to the effect that if a person is arrested by persons performing the duties of a police officer in the service of a foreign country, then for the purposes of our law, those would be police officers.

The question of rank is seen as important, the fact that you have delineation suggests that rank is important.

Kenyarithi s/o Mwangi V. R

This stresses the importance of rank and in this particular case statements taken by a police corporal were held to be inadmissible because they did not adhere to rule on rank

R V. Mwanda and others Crim Case NO. 100 of 1977

It held that rank is a rough and ready measure of intelligence and responsibility it is assumed that once an officer attains a particular rank, a measure of intelligence and responsibility is assumed.   This may not always be the case but it is so assumed.

Section 28 – confessions made in police custody are only admissible if made in from of a police officer of the rank of sub inspector or magistrate and the question is it relevant to whom the confession is addressed what is important is in the presence of whom.

Ngumba & Others V. R

This case is to the effect that if the statement is made to any other person, it is inadmissible unless the magistrate or the police officer of the requisite rank is present.

Rashidi s/o Sadala V. R (1950) 17 E.A.CA. 24

Accused made a confession to a fellow prisoner in remand and it was in the presence of the governor of the remand prison.  The question was whether that confession would be admissible.  It was held that it was admissible because even though the governor was not technically speaking a police officer, he could actually fall within the broader definition of who a police officer is.

R V. Shamsuddin Kassim (1944) 11 E.A.C.A. 90

Which is to the effect that if a person has duties assigned to them which are akin to those of a police officer, that in itself does not make them a police officer qualified to take the statement.

In Rashidi Sadala, the point is that the term police officer is broadly interpreted and we are looking at the level of police officer the governor of the prison might be.

Joseph Ndung’u Kimani V R (Ishmael Kanyari V. R)

Immediate presence of a police officer

WHAT IS POLICE CUSTODY?

Is it jail? Cells?

The interpretation is that police custody does not refer to cells alone or to situations where a person is under arrest.  It means any state of affairs when one comes into contact with the police and cannot depart at will.  You don’t have to have been placed under arrest it could be a situation where a police officer has summoned you and you could not depart where they could prevent you from leaving.

R V.  Sangutet Page 23 of course outline (question of what is police custody)

What is the evidential value of statement that are made in police custody?  We are looking at the fact that their voluntariness is going to be an issue and also at the capacity for abuse of power.  By authority of the case of Njuguna s/o Kimani, a statement that is made in police custody is not necessarily inadmissible but it has to be scrutinised to see whether it was voluntary or not.

Judges Rules that have to be adhered to when taking confessions besides rules in S. 28 and 29.  there are 9 judges rules and the fact that you have all the safeguards

1.                  When a police officer seeks to discover the author of a crime he may put to any person any question pertaining to such crime; whether such a person is a suspect or not;  this is giving the police officer a wide net and they are mandated to put any question to any person in custody or not.

2.                  When a police officer decides to charge a person with a crime, he should caution that person before putting any questions to them.

3.                  Persons in custody should not be questioned without a caution being administered

4.                  If a prisoner wishes to volunteer any statement, the usual caution should be administered with the last words of caution being be given in evidence.

5.                  ‘Do you wish to say anything in answer to the charge?’  You are not obliged to say anything in answer to the charge unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. (care should be taken to avoid any suggestions that a person’s answers can only be used in evidence against a person coz it can [prevent people from making statements.

6.                  Where a prisoner gives evidence before the administration of a caution.  Such statement is not rendered inadmissible merely because of the lack of caution but in such a case, a caution should be administered as soon as possible.

7.                  A prisoner making a voluntary statement must not be cross examined.  No question should be put to the prisoner about the statement except for the purpose of removing ambiguity about what he said.

8.                  When two or more persons are charged with the same offence and their statements are taken separately, the police should not read these statements to the other persons charged.  But each of such persons should be given by the police a copy of such statements.  Nothing should be said or done by the police to invite a reply.  If the person charged wishes to make a statement in reply, the usual caution should be administered. 

9.                  Any statement made in accordance with Judges rules should whenever possible be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish. 

The criminal procedure in this country make these rules applicable in Kenya where the law is silent.

Applicability of the Judges Rules has been discussed in the following cases

Anyangu V. R (1968) E.A.L.R

Ibrahim V. Republic (1914) A.C. 609

R V. Boisin (1918) 1 KB

These are rules of practice in the taking of confessions not necessarily legal rules.  They are in the interest of the accused.

RETRACTED AND REPUDIATED CONFESSIONS

When a statement made by an accused person is produced in trial, the accused may allege that they never made the statement.  They may admit having made the statement, but allege that they only made it because of inducement threat or promises made by a person in authority.  when an accused person denies ever having made a statement, he is said to have repudiated the statement..  where the accused admits having made the statement but says that they only made it as a result of an inducement threat or promise, the accused is said to have retracted the statement

Tuwa Moi V. Uganda

This case distinguishes retracted confessions from repudiated ones.

At page 84 a retracted confession occurs when the accused person admits that he made the statement recorded but now seeks to recant, to take back what he said generally on the ground that he had been forced or induced to make the statement.  In other words that the statement was not a voluntary one.  On the other hand, a repudiated statement is one which the accused person avers he never made.  the judges in that case proceeded to say that in terms of effect, there is not really much difference between a repudiated confession and a retracted confession because the implication are the same that is that such statements should be treated with caution and should not be the basis of a conviction unless it has been corroborated in some material particular.

To determine whether a repudiated or retracted statement is admitted, there is going to be a trial within a trial.  The procedure for a trial within a trial is given in the case of

Steven Muriungi & Others V. R

The usual practice is for the defence to raise the issue of repudiation or retraction,  the prosecution calls witness to prove that the statement was properly taken and they can be cross examined.  The accused could make a written statement challenged the statement or opt to give a statement on oath or call witness to attest to the evidence. It is up to the Judge to decide whether a statement was admitted or whether it was properly taken.  A trial within a trial happens in both the High Court and the Magistrate’s court.  Where there are assessors, they are required to leave the court during the trial within the trial. If the statement is ruled admissible, the trial within a trial is repeated for the benefit of the assessors.

IN WHAT LANGUAGE SHOULD A CONFESSION BE RECORDED

An accused person should be allowed to make a confession in a language of his choice and where the recording officer is familiar with the language the accused opts to use, it should be recorded in that language.  This is to oviate or avoid the risk of the accused saying that they were misunderstood or where they may even say that they were at cross purposes with the recorder of the statement.

If an interpreter is used in the making of the statement, both the original statement and the translation must be produced to verify the accuracy of the translation.  Essentially, the balance tilts in favour of the accused person.

Onchau s/o Osigai V. R (1956) 23 E.A.CA. 586

This authority for proposition that the interpreter has to be competent, responsible persons and in interpreting care has to be taken to conform to rule 7 of the judges rules.

Section 30 of Evidence Act

Goes against the grain of Sections 26, 27 28 and 29  the amended seeks to repeal Section 30.  what is the use of having safeguards?  The courts have ruled that judges always of discretion.

Nayinda S/O Batungwa V. R (1959) E.L.R 288

This case provides that the judge has discretion and in exercising the discretion the judge will look at the totality of the circumstances and decide in the fairness of justice to the accused person.  It will not always be admissible and the Jude could still exclude it.  The circumstances do not render the statement inadmissible but the judge can allow or disallow.

Section 31:

  Confessions that lead to discoveries.  Was a confession voluntary or not.  If it leads to discovery, both the facts discovered   and that … are admissible in evidence.

Statement taken whether voluntary or not and leading to discovery.   The evidence as relates to leading to discovery will be admissible.  The possibility of Section 31 may be abused by the police officers seeking to secure a conviction.  The police can plant evidence and it is important for the judge to ascertain the truthfulness of the discovery whether it is real or a staged discovery.  The criminal law amendment bill seeks to repeal Section 31.

Sawe Arap Kurgat (1938) K.L.R 68

Mwangi s/o Njoroge V. R 91954) E.A.CA. 357

In the Mwangi Case the court of Appeal was of the view that even under Section 31 Judges have a discretion to exclude evidence leading to a discovery if they think it is necessary to avoid abuse of the legal provisions.  The facts were as follows

The accused was surprised in an ambush by two Homeguards, he shot one of them dead while the other one escaped unhurt.  The accused was seeing stooping as if to hide something and he then came to the other guard to surrender.  Asked to show where he had hidden the gun or risk being shot, the guard following him closely with a rifle ready to shoot, the accused stated “ Come, I will show you where I hid the gun.” The gun was discovered.  The Judges were of the view that much as the statement could be technically admitted under section 31, they had a discretion to exclude it as it had been procured at the threat of death and therefore misuse of the law.

Kenyarithi s/o Mwangi V. R

Section 32 – Definition of confession.  Confessions that implicate a co-accused.

It is to the effect that where two or more people stand a joint trial and one confesses implicating …..    the confessions can be admitted.  The anticipated confessions at S. 32 has to be

Definition more strict than the one found in S. 25.

Courts exercise a lot of caution in admitting statements especially where they are dealing with accomplice statements.  While under S. 141 accomplice evidence is admissible and can found the basis of a conviction, courts have as a matter of practice required corroboration for accomplice evidence.

Muriungi V. R. – caution exercised by courts in dealing with accomplice evidence.