LAW OF EVIDENCE

CONFESSIONS
 DEFINING THIS
• A confession is best defined under
common law as a statement made outside
court to a person in authority which is
adverse to its maker whether fully or
partially incriminatory.
 SCOPE
1. A Statement
2. Wholly or partly incriminatory made by a
person outside court
3. To a person in authority
 A STATEMENT
• The term statement has been extended to
encompass not only oral statements but also as
confirmed in the case of Tapisha v the People
written statements including signatures or marks
of the maker. Other cases include failure to
respond to a statement, i.e. remaining silent
when an answer in rebuttal should be expected
and generally the conduct of the accused has
also been held to amount to confessions
although not orally but rather merely being an
implied assertion
 WHOLLY OR PARTLY INCRIMINATING: DISTINGUISH
BETWEEN CONFESSIONS AND ADMISSIONS

• This determines when a statement becomes a confession.

• It is held that the statement will become a confession when it is
wholly or partially adverse/incriminating to its maker. Or where it is
incriminating or partially exculpatory
• Initially it was thought that a statement will not amount to a
confession where at the point of obtaining the statement it does
nothing to incriminate or is not adverse to a maker but later does
become incriminatory or adverse to its maker. A good example is a
statemetn that appears true but later is found to be a lie conflicting
with the other evidence.
• Later English Jurisdiction in the case of R v Z have held to the
contrary so that a statement although not being incriminatory at the
time of obtaining may then become a confession if at the time it is
tendered in court it is partially or wholly incriminatory
 SCOPE: TO A PERSON IN
AUTHOURITY
• Unlike the English position our position is
that a confession is that statement made to a
person in authority or a person trained to
obtain such evidence and investigate crimes.
• Abel Banda v the People: illustrates that where
a statement being wholly or partly incriminatory
is a made to a person not in authority, it falls
outside the scope and protection needed for
confessions
 Distinguish between a
confession and an Admission
• A confession is a wholly or partially incriminatory
statement. An admission is basically confirmation to
a state of facts as existence either detrimental to
one’s case or favourable to another’s case
• An admission can be made in court or out of court, a
confession is made out of court.
• An admission is a term used in both criminal and civil
trials, a confession only in criminal trials.
LISWANISO SITALI AND OTHERS v MOPANI
COPPER MINES PLC (2004) Z.R. 176 (S,C,)
• An admission can be made to a person in authority
or one that is not a confession is only made to a
person in authority
 ADMISSION OF CONFESSIONS
• The general rule is that confessions are
admissible.
• Prima facie confessions fly right in the face of
the rule against adducing hearsay evidence as
these statements are made out of court and the
prosecution later seeks to admit them in court.
• Why have the courts decided to admit
confessions unlike other evidence falling under
the scope of hearsay?
 EXCEPTION: RULE OF
ADMISSION
• A confession may not be given as evidence by the prosecution
unless the prosecution shows beyond all reasonable doubt that
such a confession was obtained freely and voluntarily i.e. not
obtained by any inducement, hope or advantage or fear of prejudice
exercised or held out by the person in authority or by oppression.
• As a second threshold or rather the confession although the above
is proved may still be excluded by the judge exercising his general
discretion of excluding such evidence where he considers that the
prejudicial value of the evidence outweighs its probative value (R v
Sang), this will normally be the case where the evidence is obtained
by breach of the judges rules (Shamwana v the People)
 WHY THE RULES
• These protections are put in place because often confessions are
obtained by persons in authority that may abuse their power and
entice the accused or apply pressure on them to give evidence of a
confession, so that they may secure an easy conviction.
• An individual due to fear or for purposes of leaving the place may
decide to admit to a none existent fact just to get out of the
examination room.
• Normally such a statement would have a large impact on the judge
thus the same must be admitted with caution.
• Although confession may often be the most reliable evidence, Muna
Ndulo a position confirmed in the case of R v Kahyata confirms as
a the basis of excluding confession being not necessarily that the
confession is untrue but rather because of the dangers of admitting
such statements which may be induced and thus the negative effect
this would have on the due administration of justice.
 CAN YOU CONVICT BASED ON
A CONFESSION
• It was held in the case of Hamainda v the
people that due to the nature of
confessions they may prove to be
unreliable thus a judge must only convict
in light of other corroborating evidence
 TO PRODUCE MUST INCLUDE
THE FULL STATEMENT
• The case of the people v Lukas Chiwaula
emphasises that whenever evidence
purporting to be a confession statement is
sought to be admitted it is desirable that
the exact words used by the accused
should be given in evidence.
EXAMPLES WHAT WILL AMOUNT
TO A CONFESSION
It has been said that to be admitted the burden lies on the
prosecution to show that the evidence was obtained
free and voluntarily i.e. with no inducement or
oppression.
The question is in what circumstances will the court
consider that a confession was not obtained freely and
voluntarily?
1. Does fear amount to inducement?
2. Will failure to understand the language amount to
inducement
3. Prolonged questioning
4. Oppression
5. Breach of the Judges rules
 Fear and Failure to understand the
language
• Kafuti Vilongo v the People:
• Established that being scared in itself is not a consideration it must be shown that the
accused was put in fear as a way of inducing him to make the confession
• The case dealt with inter alia the admission of a confession statement made by a
juvenile charged with arson. It was stated on behalf of the defendant that the judge
erred in admitting the confession statement without holding a trial within a trial on
grounds that the accused did not understand the language in which it was recorded.
The court held that the trail within a trial was not to be held on such grounds of
language this rather formed part of the general issues to be considered.
• Secondly the court held that a confession statement is not to be excluded simply on
the grounds that the accused was scared, this was not sufficient, it had to be shown
that the accused was put in fear which caused or induced him to make that
statement.
• Lastly the court held that the trial court erred in failing to hold a trail within a trail as
soon as it was alleged on the part of the defence that the accused had been beaten
up and forced to sign the confession statement. Upon so hearing of the allegation of
involuntariness it was stated that the trial court should have immediately dealt with
that matter and failure to do so thus amounted to misdirection.
 Prolonged Questioning
• R v Zondo: prolonged questioning itself will not imply that the
confession was obtained involuntary, unless there are other
aggravating circumstances if not alerted to the court this factor in
itself will not raise red flags. A factor that the court may consider it
was stated is lack of representation. Where however the accused
fails to raise prolonged questioning and he is represented the court
will not hold a trial within a trial.
• Chigowe v the people (1977) Z.R. 21 (S.C.): the court held that
prolonged questioning in itself is not involuntary, unless shown that
it was done in a way solely based on extracting a confession as
opposed to investigating a crime.
• Muwowo v the People: most confessions may not be given as a
result of oppression but due to prolonged questioning the judge held
that whether the nature of any questioning goes beyond mere
investigation to questioning so overbearing so as to induce the
accused to make a statement will depend on the circumstances of
the case.
Chigowe v the people: prolonged
questioning
• ‘it is obvious once the full scope of the word inducement is
recogniszed that prolonged police questioning may amount to an
inducement since it may excite the hope in the victim that it will be
discontinued if he makes a statement and the fear in him that it will
continue if he does not make a statement. The mere asking of a
question or a number of questions of a suspect or an accused by a
person in authority will not be an inducement so long as such
questioning does not amount to an importunity of the suspect or
accused to answer. In each case whether the questioning has
amounted to an inducement, that is to an overbearing of the will of
the person questioned to remain silent, must be determined by
reference to the nature and extent of the questioning, the
circumstances which it took place and with regard to the onus being
upon the prosecution to negative the use and effect of any
inducement.’
 OPPRESSION
1. Kafuti Vilongo v the people: it was suggested that the accused
was oppresed, the court was stated to have erred in failing to hold
a trial within a trial
2. Where an earlier statement was given under oppression and the
latter was given in line with the judges rules i.e. after warn and
caution:
See Chigowe v the people: In essence the case stated that where
there are two statements one of which was as a result of
oppression involuntary the assumption is that so is the second
statement, the burden then lies on the prosecution to show that at
the time of taking the second statement the inducement seized to
operate in the mind of the accused, which falls as one of the
general issues to be determined in which case there is no need to
hold a trial within a trial.
 OPRESSION
• Where however the involuntariness
occurred relating to the second statement
made, the same rules of inadmissibility do
not apply to underpin the first statement
and thus making it involuntary. This was
established in the case of Sakala v the
people
 TWO STATEMENTS: Muwowo v
the people
• A confession made as a result of prolonged questioning (going
beyond that normal questioning to that which is overbearing and
induces the accused to make a statement) just like oppression
may render confessions inadmissible.
• Secondly the court held it was the duty of the prosecution to show
that the existence of the oppressive and prolonged
circumstances which were the subject of the first questioning did
not operate on the mind of the accused at the time of which he
made the second statement, which was not illustrated by the
prosecution. ‘if the accused has been induced to make a gravely
incriminating statement he is unlikely to have been freed from the
effect of that inducement by administering to him a couple of
hours later a caution even if the caution were administered with
unusual solemnity.’
 Breach of Judges rules: What are
judges rules?
• Judges Rules adopted from English law. These are not binding rules of law but rather
guidelines to investigation authorities breach of which will give the judge a discretion to
dismiss a confession statement made in breach of the rules. The rules applicable to
Zambia now are:
• A police officer investigating an offence may question anyone whether suspect or
not, from whom he thinks useful information can be obtained. This is so whether a
person is in custody or not so long as he has not been charged with the offence or
informed that he may be prosecuted for it.
• Rule 2 states that a police officer must caution a person he reasonably suspects to
have committed an offence before questioning him on anything relating to that
offence
• rule 3 states that where a person is formally charged and is in custody or informed
that he may be prosecuted, he must be cautioned further. Save for exceptional
circumstances there may be no questioning subsequent to these three stages,
however in those special cases further caution must be given.
• Rule 4 provides for the taking down of voluntary statements and the caution and the
authentication of such a statement thereafter.
• Rule 5 relates to cases where a person is charged or informed of the likelihood of his
prosecution and is made aware by a police officer of a written statement of a co-
accused. The police officer shall hand to such a person a copy of such written statement
but he shall not be invited or induced to reply if he so chooses to do he must be
cautioned in accordance with rule 3
• rule six states that persons other than police officers charged with the duty to investigate
offences or charging offenders shall so far as is practicable comply with these rules.
 DOES BREACH OF THE RULES
LEAD TO EXCLUSION?
• The general position is that the basic test for admissibility of
confession statements is whether they were obtained freely and
voluntarily in which case they will be outright admissible however if
they are obtained in breach of the judges rules, this gives the court
the discretion to exclude a confession although held to have been
made voluntarily see R v Khayata.
• Breach of the rules as these are not legally binding but merely
guidelines only give the judge’s discretion to exclude. The test of
admissibility in all instances being freely and voluntary on the part of
the maker see:
King v Voisin
• Even then a breach of the judges rules will not automatically lead to
an exercise of discretion in Chinyama v the people, judge concluded
that it is not in every circumstance that the question of the exercise
of a judges discretion arises, it is only where such conduct is
illustrated to have induced the confession so that it would not have
been made but for the breach.
 King v Voisin
• In the case of the King v Voisin (dealt with the admissibility of a
written statement which was incriminating to the accused, the
statement was made without any prior caution. A note was
found at a murder scene with the words Bladie Belgiam written
on it. The accused was taken in at the police station to account
for his movements and was asked to write the words bloddy
Belgian which he spelt bladie belgiam, he was not cautioned
before making this written or a prior voluntary oral statement.
In all of this he was detained in custody for inquires although
not being charged. On appeal it was illustrated that both
statements were made voluntarily: it was held that the test is
whether it is shown that the statement was made freely and
voluntarily, if it is then the statement is admissible. The judges rules
are rules to guide police in their investigations but do not have the
force of law thus were breached they do not automatically make the
statement inadmissible but rather give the judge a discretion as to
whether to admit the statement or not.
 R v Zondo
• In R v Zondo the main ground of appeal on a conviction of murder and
death sentence was that the confession was obtained in breach of the
judges rules and should not have been admitted. The court in this case
established two considerations in relation to the judges rules (although in
this case it was decided that the judge’s rules as they applied to Zambia did
not apply as there was no breach due to the fact that the accused when
making the statements was not in custody)
• the test as to admissibility of confession statements is whether the same
were obtained freely and voluntarily, whether the judge’s rules were
followed is a consideration to take into account when deciding this
fact, in which case if the rules were breached the prosecution will have a
high burden to discharge to show that the confession was in fact made
freely and voluntarily.
• Secondly even where the confession is admissible as having been obtained
freely and voluntarily, the court will still have discretion to exclude the
statement if it can be shown that admitting the statement will operate
unfairly to the accused. In relation to this whether the judge’s rules were
breached is the most relevant fact.
Judges Discretion limited to breach
of the judges rules?
Chinyama and Others v the people:
• The case dealt with the exercise of the judges discretion which the appellant claimed should have
been applied notwithstanding that the court concluded that the confession was obtained freely and
voluntarily.
• In the judgement the court first recognised that when dealing with an objection to a confession
statement the judge must consider whether the confession was freely and voluntarily obtained, when
considering this the judge must take into account all facts surrounding the circumstances of the
making of the statement which would indicate involuntariness failure of which would lead to appeal
on grounds of misdirection, thus involuntariness goes beyond assaults to long hours without sleep
other less direct forms of inducement. If the confession is found to be involuntary it must be excluded
and the question of the judge’s exercise of the discretion does not arise. If however it is shown that
the confession is voluntary, the judge will consider whether the confession should nonetheless be
excluded in exercising his discretion on grounds that in all the circumstances the strict application of
the rules as to the admissibility would operate unfairly against the accused.
• Importantly the case outlines that judges rules which are associated with police practices fall under
one of the considerations in considering fair conduct in general and thus fair conduct is not limited to
breach of the judges rules but governs conduct in general including the conduct on the part of people
other than police officers which can lead to the exclusion of evidence in the discretion of the court.
• Thus where a confession is obtained voluntarily and freely, the court may exercise its discretion in
excluding the confession where there has been a breach of the judges rules or other unfair conduct
surrounding the making of the confession either on the part of a police officer or of some other
person which might indicate to a judge that there is a danger of unfairness. The test being whether
the strict application of the rules of admissibility would operate unfairly against the accused which
depends on the facts of the case.
 Trial within a Trial: what is this
• It is termed a trial within a trial because the
main trial will be suspended and the court
will start holding a mini trial just to inquire
into the circumstances in which the
statement was made.
 Trial within a trial: procedure
• What happens in practice is:
• Before production, there is an objection to the warn and caution statement.
• If the objection relates to voluntariness of the incriminating statement, indication is given of
proceeding by way of trial within a trial.
• The police officer will be the first witness in the trial within a trial or those recording the
statement, it will normally be indicated that particulars have been recorded, and the police
officer will then give the circumstances in which the statement was recorded.
• After cross examination the prosecutor calls the next witness (including persons that may have
been present during the recording) (evidence will be limited to the circumstances in which
statement was given). Prosecutor closes case after all witnesses on his behalf have been called
(cross examined and re-examination).
• Then the accused will also be given an opportunity to give evidence to support his allegation
that the statement was not given freely and voluntarily, he may choose to not give evidence
(onus is on the prosecution to show that the statement was made freely and voluntarily) but it is
advisable that he does otherwise there is no other way of proving that the statement was made
involuntarily. The accused is also allowed to call witnesses. He and witnesses will also be cross
examined and re-examined
• At the close of the accused person’s evidence the parties will be invited to make submissions
after which the court will deliver the ruling of its findings. Submissions made by the parties is
limited to persuading the court to admit or reject the production of the evidence .
• The court will then make a ruling. Where the court rules that the statement was not made freely
and voluntarily made, it will not allow the production of the statement and consequently will not
allow the police officer to read out the statement. If however it considers that the statement was
made voluntarily it will allow the police officer to produce the statement. The court will then
accept the statement and give it a number. It will then allow the police officer to read back the
reply (the warn and caution statement). At the point where the court has ruled that the
statement was made freely and voluntarily the defence counsel cannot object to the production.
 Note:
• Cross examination of the accused person
and any other witness in a trial within a
trial is limited to issues relating to the
admissibility of a statement.
 CASES ON TRIAL WITHIN A
TRIAL: TAPISHA V THE PEOPLE
• The accused in this case denied making any statement at all, he stated he was simply forced to
sign a document containing the statement.
• The court distinguished between matters dealing with voluntariness and those of truthfulness, the
latter being subject to general issues to be considered i.e. do not need to hold a trial within a trial.
• Reasons for a trial within a trial were explained in this case to be to prevent prejudice against a
defendant. As where a trial within a trial is held the questioning must be limited to the
admissibility of the particular statement in dispute i.e. whether it was made voluntary and freely.
Where however it is considered in the main trial the accused if he alleges anything contrary to the
statement he may be cross examined on matters concerning the general issues of the trial and
not only those relating to the voluntariness of the statement, putting him at a disadvantage.
• The court held that a confession includes written, oral and signatures. Where an accused person
claims to have been induced to sign a paper be it blank or containing a statement a trial within a
trial must be held. Where he claims that what he signed is not what he said, or to have signed
something voluntarily of which he did not know the content this falls as part of the general issues
in which case a trial within a trial need not be held.
• Any allegation as to involuntariness to any part of a statement even the signature must be dealt
with in a trial within a trial. The court held in this case that as this was not done the judge erred in
his decision although on the facts of the case the application for appeal was refused as the other
evidence against the accused was sufficient.
TRIAL WITHIN A TRIAL/GENERAL
ISSUE?
• The case of Tapisha v the People illustrates that whenever an accused alleges to
have not made a statement freely and voluntary a trial within a trial must be held. This
is so even where the statement made was merely a signature or a thumbprint. In all
circumstances a trial within a trial must be held. Where however the accused states
to not have made any statement at all. This is a matter to be determined as part of
the general issues in the case.
• The case of Chinyama confirms Tapisha, even where the facts suggest oppression if
the accused denied making the statement, there is no need to hold a trial within a
trial, as it falls as part of the general issues, if however it comes out during cross
examination that the confession was not given voluntarily the judge must still exclude
it, it is thus preferable for counsel to advise their clients to not deny having made a
statement for the issue of voluntariness to be properly established in a trial within a
trial.
• Compare the above to the first judgment in MWIYA AND IKWETI v THE PEOPLE
(1968) Z.R. 53 (C.A.): in this case one judge determined that (a point not concurred
by the rest of the judges) it to be an irregularity where there was failure to hold a trial
within a trial in a case where the accused denied making such statement, the court
held that any rejection or challenge (notwithstanding the reasons for objection) as to
the admissibility should be determined in a trial within a trial.
 LUMANGWE V THE PEOPLE: when can a trial
within a trial be heard?

Establishes:
1. Before a confession statement is adduced the
court must ask the accused whether he
intends to object on the ground that it was
voluntary or not.
2. Immediately an issue of involuntariness arises
a trial within a trial must be held, it matters not
that the accused (as it was in this case)
objected at the close of the prosecutions case.
3. Failure to do the above led to a retrial as there
was insufficient evidence (apart from this) to
convict the accused.
 IMPORTANT POINTS TO
CONSIDER
• Confessions are defined as those incriminating statements made to persons in
authority thus a confession made to a persons not being in authority will be
admissible
• Secondly an admission not falling under a confession made to a person in
authority is admissible as an exception to the hearsay rule and this includes direct
admission and vicarious admissions i.e. made to a third party by those in privity
with the party to litigation as evidence against him.
• The case of R v Chandler confirmed that silence in some instance may amount to
a confession thus although the general rule is that no inference may be drawn
from silence as this is as of right so that even where no caution is given as to the
right to remain silent and the accused chooses not to answer any question, this is
not an inference of guilt. However in some appropriate and limited cases where
the accused is expected to respond to an allegation but fails to do so, the court
may from his silence draw an inference of guilt. This was stated to be so where the
accused and the person in authority is of equal standing (no one dominating party)
and it is expected that he respond to a particular allegation. This shows that a
confession statement need not be oral it may be written, silence, conduct or from a
persons demeanour. The question is whether silence can be construed as an
adoption of an accusation by the person against whom it is made.
• A retrial will be ordered only were the other evidence is insufficient to convict see
Tapisha and Lumangwe