Chapter 2: Circumstances under Which Proof is Unnecessary
While proof of facts in issue is a cardinal principle of the law of evidence, it may sometimes be made unnecessary for certain facts to be proved or the leading of evidence of certain facts may even be prohibited.
A voluntary confession makes it unnecessary for the prosecution to prove the case against the accused otherwise than through proof of the confession. Presumptions irrebuttable or rebuttable and the concept of judicial notice may enable the court to accept certain facts as established without proof. Estoppel may prevent a party from adducing evidence to establish a particular allegation. Privilege may entitle the state, a party, a witness or other person from disclosing certain matters in court. The demands of law enforcement and the demand of the public interest may operate with similar effect.
Confession (Ss. 31 – 37 Evidence Act)
A confession is a statement whether oral or documentary made by a person charged with a crime voluntarily admitting or inferring the commission of an offence. It is an admission of guilt to a criminal charge.
S. 31 (1) of the Evidence Act defines a confession as: “a voluntary admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Confessions are broadly of two categories, i.e.
1. Judicial Confession: A confession which takes place in court in the course of a trial, for instance a plea of guilt
2. Extra-judicial Confession: A confession which takes place outside the courtroom, e.g. statement to a police officer.
In the case of a judicial confession the rules relating to the taking down of statements do not apply because the confession is made on oath in the face of the court. It must however be voluntary. The court can convict an accused on his own confession made in open court. Note however that the courts as a matter of practice do not accept a plea of guilt to a capital offence charge. In order for a plea of guilt to be accepted as a confession it must be an unequivocal admission of the offence and made voluntarily. The charge must not only be put to the accused but also explained to him. His response must be recorded verbatim, rather than merely reduced to an entry or a paraphrase such as “guilty”. The facts must then be narrated by the prosecution and the court must be satisfied that the facts as presented fully constitute all the elements of the offence charged. The accused must be invited to react to such narration of facts as to whether he accepts them or not. Only if he accepts those facts and they constitute the offence charged, should the court complete the process of entering the guilty plea and convict the accused?
In a series of decisions The Gambia Court of Appeal has stressed that unless this procedure is followed and the record of proceedings reflects adherence to this process, it will not accept convictions secured on suspect “guilty” pleas. (see Kebba Bojang v The State , Pa Alieu Ngum v The State, Ebrima Jaw v The State, Bakarry Sarr v The State, Lamin Jatta v The State and Sarjo Danso v The State).
Section 44(4) of the Drug Control Act until its amendment provided as follows:
Notwithstanding anything contained in this Act or any other enactment where any person charged with an offence relating to drugs has pleaded guilty the prosecution shall not be required to tender to the court the report of an analyst on the nature of the drug in respect of the offence charged.
The courts have ruled that this “provision does not relieve the prosecutor of the duty that he should satisfy the court that the substance found in an accused’s possession was indeed a controlled drug under the Act. The admitted facts should contain sufficient proof of the charge”. (Pa Alieu Jaw v The State; Kebba Bojang v The State). These decisions have been criticized as conflicting with the express and clear words of the sub-section as well as with the rule that where an accused person pleads guilty, the prosecution is relieved of proving the facts but has an obligation only of stating them. The analyst’s report, it is said, constitutes evidence.
These decisions of the court have however also been justified on the grounds of ensuring justice and fairness and expediting judicial proceedings. The thrust of the court’s decisions has been that there must be a faultless identification of the suspect drug as a prohibited drug and thereafter linked to the suspect accused.
Failure to do so prior to the institution of criminal proceedings will inevitably result in avoidable delay, as where the accused pleads not guilty, the prosecution will be constrained to suspend the proceedings while a chemical analysis is carried out. More serious however, it is felt, is the danger of an unacceptable culture developing among prosecutors of encouraging suspects to plead guilty in the absence of, and indeed to avoid securing, an analysis report.
The Drug Control Act has now however been amended by deleting this particular provision. The decided cases however demonstrate the strict approach of the courts generally regarding proof in criminal cases.
In the case of an extra-judicial confession, the court has to satisfy itself, since the statement was not made in its presence, that all the rules have been observed in the taking down of the statement. The admission of guilt in the statement must be clear, unambiguous, and unequivocal. There must be no doubt that the accused or the suspect is admitting guilt of the offence with which he is charged or accused. If the accused accepts only some of the elements of the offence, but denies the others or is silent the statement is not a confession. Such a statement however may be an admission of some relevant facts only, for example:
A is charged with the murder of B. In his statement, A says, “I stabbed B with a knife in order to defend myself from a cutlass with which he was trying to hit me”. The statement is not a confession. It is however an admission by A of the actus reus of the offence but not of the mens rea. The statement will therefore not be a sufficient basis on its own for a conviction. The prosecution still has to lead evidence to rebut the defence set up by the accused.
If a confession is made by a person who is in the custody of law enforcement authorities then unless the following conditions are fulfilled it will not be accepted by the courts as evidence (S. 31 (2) EA)
a. it must be in writing and must be proved by the production of the written confession. Oral evidence of a confession allegedly made to the law enforcement authorities is not admissible. In the case of Kebba Jobe v The State the court set aside a conviction based on unlawful and inadmissible oral evidence of an alleged written confession which the prosecution had failed to tender in evidence.
In the case of Omar Sey v The State the court emphasised that there is no legal requirement to have trials under Voir dire to determine the voluntariness of a caution statement which is not a confession. In that case when it came to admitting the caution statement into evidence, the accused denied its authorship. He denied the signature. The Court of Appeal was critical of the decision of the trial judge to admit the statement without any further evidence other than the police officer – e.g. from an expert or someone familiar with the signature – to prove it. But since the judge having admitted the statement declined to use it, the point was of no consequence on appeal.
b. subject to the discretion of the courts the taking down of the statement must comply with the Judges Rules ;
c. it must be made in the presence of an independent witness, that is, a person who is not a member of any disciplined force ; and
d. it must be signed or thumb-printed by the person making the statement.
The rules do not require that the independent witness should sign the statement but as a matter of good practice he should be invited to sign or endorse the statement as this will facilitate proving the presence of an independent witness at the time the confession was made.
If paragraphs a, c, and d are not complied with, a confessional statement will not be accepted by the court. If the Judge’s Rules are not observed it is still left to the court to determine whether in all the circumstances of the case and notwithstanding the violation of these rules the statement should be accepted by the court in the interest of justice and if its admission would not occasion a failure of justice.
A confession must be voluntary for it to be accepted by the courts. If from the evidence before the courts it is clear that the confession was made by the accused person involuntarily either by reason of threats or by reason of promises or inducement the court will reject the confession. Whether there has been a threat or inducement or promise which operated on the mind of the suspect to cause him to make a statement is a question of fact for the court.
Test of Admissibility
Voluntariness is the principal test for the admission or acceptance of a confession. If the confession is made because of a threat to another person, e.g. a member of the family of the accused or anybody else for whom the maker is responsible the court will not accept the confession. The same applies if the statement has been obtained by the use of force or any other form of duress. If a man is going to confess to a crime, he must do so voluntarily and of his own free will.
There are certain kinds of threats however which the court will not recognise even where the accused has made a confession because of such kinds of threats. Threats to use supernatural force for instance will be disregarded by the court. e.g. A a visitor in B’s compound wakes up one morning to find all his money has been stolen from his briefcase. A then tell his host that unless B admits the theft and pays him back his money he A will go to Sanimentereng, the shrine situated at Brufut, The Gambia, and thereby make his whole family suffer. As a result B is so afraid that he makes such a statement fully to the police confessing to theft. In the cause of the trial however, B denies having made the statement voluntarily, saying he was afraid of the possible effect of Sanimentereng on his family. The courts will not accept his defence and will admit the statement as having been made voluntarily because the law does not recognise the effectiveness of witchcraft and regards belief in it as unreasonable.
If somebody makes a statement because he has been encouraged to do so as his duty to tell the truth and to avoid going to hell as a result of telling lies, the court will accept the confession as voluntarily made. Moral adjuration is legally acceptable and does not render a confession obtained as a result of it inadmissible.
On the other hand, if the suspect makes the confession as a result of a promise or an inducement to him, the confession will be regarded as involuntary and therefore unacceptable. For example, A is promised by the police that once he confesses “ the case will be closed”, “nothing will come out of it”, “it will not go further”, “there will be no prosecution”, or promises to that effect the confession will be rejected on the grounds that it is involuntary as it was obtained by promise or inducement.
The threat or the promise in order for it to result in the rejection of the confession as involuntary must come from a person in authority. e.g. a law enforcement officer, local authority such as an Alkalo or chief or other person having authority over the suspect. If it emanates from anybody that is not regarded as a person in authority, the threat or promise or inducement will be considered to be irrelevant to the voluntariness of the confession.
If a threat or promise or inducement is proved to have been made but it is also proved to have been removed before the confession statement was made it will be irrelevant and the statement admitted. See Deokinaan v.R., e.g. as to person in authority.
The promise or threat must relate to the charge. The statement must have been made because the maker believes that by doing so he would gain an advantage as a result of a promise or he would avoid harm of a temporal nature with which he has been threatened. If no reasonable person could have believed in that threat or promise, it is submitted that the threat or promise would be irrelevant.
The fact that a person has made a confession while drunk or as a result of deception played on him or because the person to whom he made the statement promised to keep it secret is irrelevant and does not affect the voluntariness and judicial acceptance of the statement.
If a statement is found to be a full confession voluntarily made, it is binding only on the person making it unless other person(s), e.g. a co-accused expressly accept the statement in writing or by conduct.
Trial within a Trial
It is the duty of the prosecution to prove the voluntariness of a confession beyond reasonable doubt. As in all criminal trials the burden of proof rests on the prosecution throughout. The standard remains the same, i.e. proof beyond reasonable doubt. The prosecution must lead evidence to show that, prima facie, the recording of the confession has complied with all the rules.
Sometimes an accused person who has allegedly made a confession will deny at the criminal trial ever having made such a statement. i.e. he repudiates or rejects the confession. On the other hand, he may retract or withdraw the confession on the grounds that even though it is his statement, he claims that he did not make it voluntarily but was induced by threats or promises to make it.
Once the defence objects to the confession being put before the court, it is the duty of the court to hold a trial within a trial. The main issue or case will be suspended while the court hears evidence on the circumstances under which the statement was obtained.
In a trial by judge and jury as soon as objection is taken or notice of an objection is made by the defence regarding the admissibility of an alleged confession, the presiding judge should request the jurors to retire from the court room.
While the jury are the judges of fact and the law is in the province of the judge, all questions of admissibility of evidence, including alleged confessions, are settled by the judge alone.
All the proceedings of a trial within a trial should be conducted in the absence of the jurors. At the conclusion of the mini-trial the jurors should be invited to return whereupon the court will advise than whether or not the statement to which objection was taken has been admitted in evidence.
Where the statement has been admitted by the judge, it will be read and made available to the jury. If it has not been admitted, they will hear no more of that statement.
The rationale for excluding the jury from the mini-trial is to avoid the real prejudice that would be caused to an accused person by a jury hearing evidence of an alleged confession which is subsequently ruled to be inadmissible by the court. The danger of the jury relying on such inadmissible evidence, despite any exhortations from the bench for them to disabuse their minds of it, is real. Such an occurrence can indeed lead to a mistrial.
In a trial by judge alone however it is rightly presumed that with his legal training and experience, the judge has no difficulty in ignoring evidence which he has ruled to be inadmissible.
The officer who took the statement and any other persons who may have been present while the statement was being taken down may be called as witnesses in the trial within a trial. The defence may also call the accused person and other witnesses to give evidence as to whether he the accused was subjected to any pressure, threat or promise by a person in authority as a result of which he made the statement.
During the trial within the trial, the court confines itself only to the issue of whether the statement was made by the accused and whether voluntarily. At the end of the evidence on this issue the court will make a ruling either that the statement was voluntarily made and therefore admissible as evidence or it will decide that the accused did not make the statement voluntarily or so reject it. The ruling will bring the trial to an end and then the trial proper will continue.
The issue in the trial within a trial or the voir dire, as it is sometimes referred to, is the voluntariness of the statement, not its truth. The test of admissibility is voluntariness, not truth. A statement may be true yet fail the test of admissibility because it was made involuntarily. Questions should therefore not be asked in the course of the voir dire, or where the statement has been in the main trial, upon its resumption as to the truth of the statement. (Ousainou Jawo & Ors v The State, Wong Kam-Ming v R.).
Where the statement has been ruled to be inadmissible the prosecution is not entitled to adduce evidence of what was said in the trial within a trial. What was said in that trial is restricted to that process.
The defence however has a second chance as they are not precluded from continuing to attack the statement even after it has been admitted in evidence. The defence may do so in order to diminish or nullify the weight to be attached to the statement through a cross-examination of prosecution witnesses and through themselves leading evidence of the circumstances surrounding the making of the statement.
If the statement in question was witnessed by an independent person, that person should be called as a witness in the proceedings. If the statement was interpreted, the interpreter should be called as a witness.
The case of Ehar Babou in the then Supreme Court demonstrated one of the pitfalls to be avoided in taking statements. In the course of investigating a homicide, the police took a cautionary statement from the suspect, with the help of an interpreter.
The police officer carried out the interrogation in the Wollof language which was interpreted to the suspect in the Mauritanian language. It was written in English by the officer, thumb-printed by the suspect and counter-signed by the interpreter. The accused could not understand Wollof nor could he read or understand English. The interpreter could not read or understand English. The officer did not understand the Mauritanian language. It was clear therefore that neither the accused nor the interpreter could tell how accurate the English recording was. The statement was admitted without the interpreter who was also acting as an independent witness having been called to testify. However, the court declined, despite admitting the statement as a confession, to rely upon it on the grounds that it clearly offended the rule against hearsay. Police officers should thus exercise due care in the selection of interpreters and in ensuring their availability at the trial.
Effect of a Voluntary Confession
Strictly speaking, once the court decides that the statement of the accused is a confession and it was made voluntarily, the prosecution does not need to present any other evidence to prove the fact in issue, i.e. the main issue in dispute before the court, the guilt of the accused. A court can always convict an accused person on the basis of a voluntary confession alone, but the prosecution, ex-abundanti cautela always leads other evidence in support so that if on appeal, the confession is held to have been improperly admitted, the conviction of the accused will still stand because there is other evidence before the court apart from the confession which can support it.
HASSAN BUBACAR JALLOW was born in Bansang, The Gambia. Educated at the University of Dar Es Salaam, Tanzania,
The Nigerian Law School and the University of London, he has
served his country as Solicitor General (1982-84), Attorney General and Minister of Justice (1984-94) and as a Justice of
the Supreme Court of The Gambia (1998-2002).
He was elected by the UN General Assembly as an ad litem Judge of the UN International Criminal Tribunal for the Former Yugoslavia (UN-ICTY) and has served as a Judge of the Appeals Chamber of the UN Special Court for Sierra Leone (UNSCSL) as well as a member of the Commonwealth Arbitral Tribunal.
Justice Jallow is currently Chief Justice of the Republic of the Gambia. He was the Chief Prosecutor of the UN International Criminal Tribunal for Rwanda (UNICTR) with responsibility for investigating and prosecuting the principal perpetrators of the Rwandan genocide of 1994. He was concurrently the Chief Prosecutor of the UN International Residual Mechanism for Criminal Tribunals established in 2012 by the UN Security Council to succeed the UNICTR and the UNITY. He was also a co-Chair of the World Justice Project. Justice Jallow is the author of several other publications including the Law of the African (Banjul) Charter on Human and Peoples’ Rights; The Law of Evidence; Law, Justice and Governance: Selected Papers; and an Introduction to the Wird of the Tariqat Tidjanniya.
He holds the award of Commander of the National Order of the Repulic of The Gambia(CRG). He is married to AJa FatouJaye Jallow, with five children.