UTILITY OF CONFESSIONAL STATEMENTS IN CRIMINAL CASES

UTILITY OF CONFESSIONAL STATEMENT IN CRIMINAL TRIALS

CHAPTER ONE

1.1   INTRODUCTION

An adverse admission relevant to the issues of guilt in a criminal case is known at Common Law as confession, and the same terminology is employed by the Evidence Act 1990. As indicated above, confessions represent the most important and most frequently encountered exception to the rule against hearsay in criminal cases, fundamental changes in the law pertaining to confessions were introduced by the Evidence Act 1990, but in order to understand the principles of admissibility of confessions, it is necessary to understand the principles of admissibility developed at common law to govern the admissibility of confessions. Apparently, we will summarize the most important aspects of the common law rules, we will then proceed to examine the new statutory definition and rules of admissibility of confessions.

While the common law recognized that a confession might be both reliable and cogent as evidence of guilt, and indeed saw no objection to a conviction in cases where a confession was the only evidence against the accused, the law recognized that a confession could be regarded as reliable only when given freely and voluntarily. If coerced on forced, reliability of the confession might be totally compromised and the integrity of the system of administration of justice itself made to suffer. The exclusion of evidence obtained through torture, force or other coercive methods was the means of protection of the accused developed by the judges during the eighteenth and nineteenth centuries, when the memory of an age when such methods were commonplace still lingered. Its significance may be gauged by the fact that in English law, the rule that a confession obtained by oppression, in circumstances likely to render it unreliable must be excluded, is the only instance of the mandatory exclusion of illegality or unfairly obtained evidence. The classic statement of the common law rule as to admissibility of confession was that of Lord Sumner in Ibrahim .V. R¹

          “It has been established that no statement by an accused is admissible in evidence against him unless it is shown by the persecution to have been voluntary statement, in the sense that it has not been obtained from him either by fear, or prejudice or hope of advantage exercised or held out by a person in authority”.

In common parlance, ‘voluntary’ meant simply of one’s free will’. That test of voluntariness, as defined by Lord Sumner was supplemented by Lord Parker C.J in Callis .V. Gunn², when he

added the requirement that a confession must not have been

obtained in ‘an oppressive manner’, his observation was, strictly speaking, obiter – the case involved the admissibility of fingerprint evidence. But when the Judges’ Rules appeared in revised form in 1964, the introduction started that the rules did not affect the principle, which was overriding and applicable in all cases that:

… It is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercise or held out by a person in authority.

Interestingly, Lord Sumner’s phrases fear of prejudice’ and ‘hope of advantage’ are habitually spoken of as ‘threats and ‘inducements’ respectively. It give rise to some problems in the application of the rules of admissibility at common law. In particular, the suggestion of some deliberate act in the words ‘threats’ and ‘inducements’ for a time led the courts to concentrate on the mind of the questioner, rather than on the mind of the suspect. As the problem may recur, despite the apparently clear wording – of the 1990 act, it is worth pursuing briefly. In R .V. Iseguilla³, the court of Appeal concluded that:

“… Under the existing law the exclusion of a confession as a matter of law because it is not voluntary is always related to some conduct on the part of authority, which is improper or unjustified. Included in the phrase ‘improper or unjustified’ of course must be the offering of an inducement, because it is improper in this context for those in authority to try to induce a suspect to make a confession”.

This view of the law would have left the accused without recourse in a case where without any improper intent and perhaps even without realizing it, the questioner created some fear of prejudice or hope of advantage in the mind of the suspect.’ In such a case, the resulting confession might well be involuntary, but under the Isequilla rule, would nonetheless be admissible. In D.P.P .V. Ping Lin⁴, the House of Lords was called upon to decide whether it was the state of mind of the questioner or that of the suspect which was to control the question of voluntariness. The House firmly held that it was the latter that governed the question of whether or not the confession was voluntary, and that should therefore also control the question of admissibility.

Indeed, the rules of admissibility applied only where the fear of

prejudice or hope of advantage was excited or held out, or the oppression created by a ‘person in authority’, The question of what persons were or were not persons in authority, has, however, settled that a person in authority must have, or reasonably be thought by the suspect to have, some influence over his arrest, detention or persecution, or in other words, be of a person from who a threat or inducement might appear credible. The limitation of the rule in this way was not of great importance, since the vast majority of confessions are made to police officers and others who are undoubtedly persons in authority, and it has been abolished expressly by the Evidence Act 1990. But it remains germane to consider it in the light of the common law rule that the fear of prejudice or hope of advantage must have been generated by the person in authority, with the consequence that self-generated fears and hopes would not destroy the voluntariness of the confessions. However, the result is different under the new statutory rules, even though the confession is made to a person who previously have been a person in authority.

In addition to the rules governing admissibility, the trial Judge had power to exclude a confession, in the exercise of his discretion, where it had been obtained by means of or following a breach of the

Judges’ Rules. The Judges’ Rules were rules of conduct and procedure for the guidance of police officers and others concerned in the arrest, detention and interrogation of suspects. They were fist promulgated by the judges of the then king’s Bench Division in 1912, and subsequently revised from time to time. The Rules were not rules of law, and did not affect the legal principles of admissibility of confession. However, in R. V. May6, Lord Goddard C.J held that the trial judge might refuse to admit a statement if a breach of the rules occurred. But the main importance of the rules always lay in the fact that a breach of the rules might provide evidence that the resulting confession was not voluntary.

1.2 DEFINITION OF CONFESSION

At common law, a confession was the name given to an adv-erse admission by the accused relevant to the issue of guilt in a criminal case. In Nigeria, as the case in point, confessions are covered by section 27 to 32 of the Evidence Act 1990. The word “confession” is derived from the Latin word ‘confessus’ which mean to speak or confess completely^{? 7}.

Under the Evidence Act⁸, confession is defined thus:

“A confession is an admission made at any time by a person

charge with a crime, stating or suggesting the inference that he committed that crime.

A confession, like any other admission, may be made orally, in writing, by conduct or in any way from which a proper inference may be drawn adverse to the maker. Usually confessions are made to police officer or other investigators as a result of interrogation, but may equally be made to the victim of an offence, a friend or relative or any other person.

The law regarding confessions is now the same in all cases, and it no longer matters whether the person to whom the confession is made is a person in authority.

Importantly, although in common law parlance, the word ‘confession’ connotes a full admission of guilt, it has no such meaning in law, either at common law or under the statutory definition. As long as any part of a statement is adverse to the maker, in that it has some relevance to the issue of guilt, it will be deemed a confession for the purpose of the law of evidence.

More still, going by the definition given by the Evidence Act, it is clear that admission of such guilt can be made “at anytime’ is so far it was made after the commission of an offence. Such a confessional

statement can even be made before the accused is charged. The case of Sunday Onungwa .V. The state⁹ is very illustrative in this respect. In that case, the appellant was convicted of murder. It appeared from evidence which the trial judge accepted that, during the investigations (by the police) preliminary to him being charged with the offence, the appellant admitted to ownership of a blood stained matchet recovered near the scene of the murder admitting at the same time that he had killed the deceased “as a result of the work of the devil”. The admissions was made in the presence of other members of his family amongst them was his elder brother who also testified confirming the admission made by the appellant. It was argued at the lower court that these admissions being “extra judicial” should have been rejected and that when the admissions were made it was not then decided the appellant should be charged with any offence and that no caution was administered to the appellant before they were made. Overruling these submissions, the Supreme Court held: ‘that an admission made at anytime by a person charged with crime suggesting the influence that he committed the offence is a relevant fact against the maker and if it is made voluntarily it is admissible in evidence.

Also, in Gbadamosi .V. State¹⁰, confessions was defined thus:

“Legally, the word ‘confession’ means an admission of an offence by an accused person it means an acknowledgement of crime by an accused person. It is an admission made at anytime by a person charged with crime stating or suggesting the inference that he committed the crime”.

For a confessional statement to be admitted in evidence, it must be freely and voluntarily made. The accused person must make it out of his own freewill and choice.

1.3    NATURE AND SCOPE OF CONFESSIONAL STATEMENTS

Confessions are either judicial or extra judicial. Judicial confessions are confessions made in the court in the course of the proceeding in question. Section 27 of the act is obviously wide enough in its wording to cover both, but judicial confessions are also expressly dealt with in section 218 and sections 314 of the criminal procedure Act and section 37 of the Evidence Act, also section 157(1), 161(2) and 187(2) of the Criminal Procedure Code. If during his trial in court an accused person confesses to the

10. (1991)6 NWIR PT 196 pg 182 at 189, also Ikemson.V. State(T.989)3 NWTR PT 100 pg.455

offence charged, and such a confession is in the nature of a plea of guilty section 218 of the Criminal Procedure Act prescribes the consequences of such a plea¹¹“, Section 161(2) and 187(1) of these Criminal Procedure Code deals respectively With such consequences in trials in the magistrate courts and in the High Courts of the Northern State. It should be noted that by pleading guilty, an accused person does not admit the truth of the facts contained in the dispositions. He merely admits that he is guilty of the offence as charged and nothing else¹².

Under section 314 of the criminal procedure Act, a statement made by an accused person at preliminary inquiry is admissible without further proof unless it is proved that the magistrate purporting to sign the statement did not infact sign it, whilst under section 37 of the Evidence Act any statement made by an accused person at such an inquiring or at a coroners inquest may be given in evidence.

Usually ‘admission’ in relation to a crime is used to denote the admission of a fact relevant to the crime, whilst ‘confession’ is used

11. V. Olagunju (1961) 1All N. L. R. 21 .R.V.Wilson (1954)VFSC175
12. RovRiley (1896) Q.B 309
13. Edet Obosi J. the state (1965) NMIR 119, 122
14. Customs & Excise Commissioners IV. Harz & power (1967) IALLER 177,182

to denote the admission of guilt¹³. However, the definition of confession seems wide enough to include an incriminating admission falling short of a full confession¹⁴”.

An admission made in a plea in civil proceedings does not amount to a confession for the purpose of criminal proceedings. Also an extra- judicial admission of guilt made in another proceeding not being the one in which it is intended to prove the confession must have been made by the person and not his counsel. In R .V. Asuquo Etim Inyang¹⁵ the accused was resident in Calabar and went through a form of marriage in the church there. Some 18 months later proceedings were taken against him in the magistrate court to enforce a maintenance order made against him by London magistrate’s court in respect of a marriage which the accused had contracted in England seven years previously. Before the Calabar magistrate’s court counsel for the accused admitted the facts of the London marriage. The accused himself merely gave evidence as to his financial circumstances. Criminal proceedings on a charge bigamy were instituted against him at the Calabar assizes, the prosecution relying solely on the two marriage certificates and the

15. (1931) I. O. N. L. R 33
16. Olusegun Ofutale & others .V. the state N. M. L. R. 261
17. (1961) All N.L.R. 654 (F.S.C)

admissions made before the Calabar magistrate. It was held that the admissions could not be treated as confessions for the purposes of proving the criminal charge as they were not made by the accused himself. An extra judicial confession though made orally would carry no less weight than the one made in writing¹⁶.

A confession must be direct and positive, not equivocal. In RaimiAdebisi Afolabi .V. Commissioner of police¹⁷, the accused was the storekeeper to a firm in Ibadan. When a shortage was discovered in his stores and this was brought to his notice by the manager of the firm, he told the manager that he had taken certain of the stores and sold them to assist defray his election expenses but he did not indicate how much he had sold. During a retrial he repudiated this story. It was held that, ‘as the alleged confession was neither direct nor positive as to the items contained in the charges, it was not admissible. However in R .V. Akpan Udo Essien¹⁸, it was held that a statement amounting only to a confession of implication in the crime cannot be regarded as a confession under this heading. A man confess to his own acts, knowledge or intentions but he cannot ‘confess’ as to the acts of other persons which he had not seen and of which he can only have knowledge or hearsay. The failure by the prosecutor to prove an essential element in the offence charged cannot be cured by an admission of this kind¹⁹”, he point has also been raised whether by section 27(1), which speaks of “an admission made at anytime by a person charged”, it is intended that a confession, if it is to be admissible, must have been made subsequent to the accused being charged with an offence. In R. V. Udo Eka Ebong²⁰, it was held that a statement may amount to a confession even if made before the accused was charged with the offence. However, a statement made before the commission of an offence cannot amount to a confession.

The fact that an accused has denied making the confession does not necessarily make it inadmissible. In R .V. John Agagariga Itule²¹, soon after the appellant was arrested for murder, he made a statement to a police in which he admitted killing the deceased, but described circumstances which of true, would amount to legal provocation. The next day he denied having made the statement and made a new one in which he repudiated all responsibility for the deceased’s death. His evidence at the trial was substantially in conformity with his second statement. Brett. Ag. C.J F said (at page 465 of the Report).

18. (1939)5 W.A.C.A 70
19. Suruj Paul .V.R (1958)3 ALIER 300cited in Edet Obosi .V. The state
20. (1947)12 W.A.C.A 139
21. (1961)All NLR 462(FSC)

“A confession does not become inadmissible merely because the accused person denied having made it and in this respect a confession, contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the appellant took the earlier opportunity to deny having made the statement may lend weight to his denial, but it is not itself a reason for ignoring the statement”.

It is now well settled that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution and as such the judge is bond to consider its probative value. Egboghonome .V. The state²², the words of per Olatawura J.S.C is instructive. He said inter alia:

“It will be an escape route freely taken by an accused person without any hindrance to escape from justice. It will be in the interest of the society to allow a man who has confessed to his crime to walk out of court a freeman simply because he had a change of mind, the whole trial will be mockery”.

1.4    RELEVANCY OF CONFESSIONAL STATEMENT

On relevancy of confessional statement, the Evidence Act²³

provides:

22. (1993) 7 NWLR 383

“Confessions, if voluntary are deemed to be relevant facts as he persons who make them only”. Such a confession is therefore admissible. Section 28 lists out case in which a confession is irrelevant and inadmissible. It states that 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 an 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 temporal nature.

There is no doubt that the provisions apply only to admissibility of confession on behalf of the prosecution and that an accused person may, in order to exculpate himself, give in evidence a confession alleged to have been made by this co-accused, regardless of the method by which it was obtained²⁴“.

Only voluntary confession is relevant and therefore admissible.

There is no definition of the word “voluntary” in the Act. But any confession obtained in any of the manner listed in section 28 is

23. (1993) 7NWLR 383
24. English criminal law Revision committee Eleventh report Evidence (General) 1972 command paper 4991 ut pg.34

involuntary and thus inadmissible. Therefore the section is a guide as to when a confession is not voluntary.

The burden of proving affirmatively that a confession was made voluntarily is always on the prosecution by virtue of section 27(2) and 13a(1). The prosecution should first prove affirmatively to the satisfaction of the court that a confession was free and voluntary before tendering it in evidence²⁵“. The burden of proving this never shifts from the prosecution²⁶. It is therefore wrong to admit a confessional statement through an accused person during his cross examination by the prosecution as in such a case there will be no positive evidence on which the voluntaries or accuracy of the statement can be founded. In Adekanbi .V. Attoney-Coneral of Western Nigeria²⁷, the prosecution failed to call the police constable who look the appellant’s confessional statement because the judge refused an adjournment for him to be called. The prosecution in the course of the case did consequently not tender that statement. But when the appellant gave evidence in his defence, he agreed under cross-examination that he could read and that he had signed the statement; where upon the prosecution tendered it through him. The appellant’s counsel objected to the

25. V. Thompson (1893)2 Q.B.2
26. V. Martin Priestly 50 Cr. Ann. R. 183
27. (1966) 1 All N.L.R 47

admissibility of the statement contending that the prosecution had not proved that it had been made voluntarily.

The appellant denied that he read the statement before signing it and protested that it did not represent what he said. The tria1 judge nevertheless admitted the statement saying that its voluntariness was not in issue but only its accuracy, which according to him, the appellant could still challenge. He also disbelieved the appellant’s denials about the contents of the statement. On appeal the- Supreme Court held that the judge erred in admitting the statement for by so doing he seemed to have overlooked the fact that the burden of proving affirmatively that a confession was made voluntarily is always on the prosecution. The court further pointed out that the judge also overlooked the fact that there was no positive evidence on which he could have that the statement was an accurate record of what the appellant had said and that the judge disbelieved the appellant’s denials about the contents of the statement, cannot in the case, make up for the lack of positive evidence, since there was no legitimate presumption for the appellant to rebut. It may be pointed out that failure by the prosecution to tender the statement of an accused person’ before

28. Dandare and Majema .V. The state (1967) NMLR 56
29. V. Onabajo (1936)3 WACA 32; R. V. Kassi (1939)5 WACA 154.

closing its case is a most undesirable practice and one that should not arise through oversight, if in fact prosecuting counsel make it the practice, as they should, always to tender any statement an accused may have made regards to the offence as a matter of course whether or not such statement was in his favour or against him²⁸. Where a statement by an accused is tendered in evidence and objection made on the ground that it was not made voluntarily the judge first hear evidence on the point from both parties and make a ruling on the admissibility of the document before receiving or rejecting it in evidence²⁹“.

One way in which a confession may not be voluntary is by inducement. The inducement necessary to render a confession inadmissible is an inducement to merely make a statement. It need not be an inducement to confess the truth or one which is calculated to make the confession an untrue one³⁰.

An inducement is usually a promise of advantage from confession or a threat of disadvantage from not confessing. The circumstances under which a statement was made may also determine whether not it was voluntary or induced. The inducement

• V. Viapbong (1961) NRNLR. 47
• Ebhomien and others. V. The Queen 9)1963) 1All N. L. R. 365.
• V. Bodom (1935)2 WACA 390
• Fatumarie V. The King (1950)13 WACA 39
• V. Reeve (1872)R.I.G.CR.362
• V. Steeman (1853) Dears249
• V. Ebong (1947)12 WACA 139.

may be by words accompanied by conduct from which the promise or threat can be reasonably being implied³¹. A confession elicited from an accused person as a result of physical violence inflicted on him or of threat of such violence is involuntary and therefore inadmissible³².

More still, a mere moral adjuration not amounting to a threat or promise does not affect the admissibility of a confession³³. Under the common law confessions produced by such statement as “you had better as good boys, tell the truth³⁴ and “Don’t run you soul into more sin but tell the truth³⁵ have been admitted because they are mere admonitions on moral or religious grounds.

Also a confession within the meaning of section 27(1) is voluntary and admissible even though it was made out of “juju”³⁶.

An inducement which renders a confession in admissible must be one “having reference to the charge against the accused person”. It must relate to the charge and not to other collateral matters. For an inducement to make a confession inadmissible, section 28 stipulates that it must have been held not by a person in authority. If a confession is made after the impression caused by the inducement, threat or promise has, in opinion of the court been fully removed; it is relevant by virtue of section 30.

37. R. V. Voison (1918) I. K.B.531; R.V.Wattam (1952)36. Cr App. R. 72
38. R.V. Richardson (1971) 2 Q.B, 484 (1971)2 All E.R. 77.3, 777

Section 31 provides that a confession, otherwise relevant, does not become irrelevant merely because it was made under a promise of secrecy, or consequence of a deception practiced in the accused person 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 bound to make such statement and that evidence of it be given.

Section 32 states that confessional statements made in one proceeding may be used in another proceedings subject to the conditions laid down therein.

1.5    THE JUDGE’S RULES AND THEIR APPLICATION IN NIGERIA.

The judges’ of the King’s Bench Division in England, at the request of the Home Secretary in 1912, formulated some rules, which were enlarged from four to nine in 1918, principally for the guidance of the police in taking statements, including confessional statements from persons in custody especially in the custody of police. These rules were operated up to early 1964 when they were replaced by new Rules made by the judges of the Queen’s Bench

39. (1952)2 Q.B. 911, (1952) 36. Cr. App. R. 122
40. R.V. Osborne (1973), Q.B., 678; (1773) All. E.R. 649.

Division. These new Rules came into operation on Monday, January 27, 1964. The old Rules were never made applicable to this country (Nigeria) by any legislation but the judges consistently held in favour of their application here as they have held in favour of the new Rules. It should be noted, however, that the Rules are rules of administrative practice, and not rules of law. For the same reason that the Rules are rules of administrative practice, failure to observe any of them in the statement will not necessarily render the statement inadmissible in evidence, albeit it may do so³⁷. The test of admissibility even under the Rules is whether the statement was made voluntarily or not. As the courts in England have pointed out, the courts must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth³⁸.

The Rules are as follows:

1. When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. This is so whether or not the person in question has been taken into custody, so long as he has not been charged with the offence or informed that he may be prosecuted for it. The case of R . Straffen³⁹, it was held that “in custody” meant in custody of the police and t